The Doctor’s Lawyer: When your good reputation doesn’t matter

The Ontario Physicians and Surgeons Discipline Tribunal recently set a new precedent: now, your unblemished professional reputation is given effectively zero weight when considering penalty. What does this mean? When reaching a decision on penalty, the discipline tribunal will weigh “aggravating” and “mitigating” factors. If you have a disciplinary history with the college, that is an “aggravating” factor—and can result in a harsher penalty. By contrast, an unblemished reputation has routinely been considered to be a “mitigating” factor— one that can reduce penalty. Despite the decades of prior case law that weighed an unblemished reputation as “mitigating,” the discipline tribunal has set a new precedent. Now, your good reputation is “neutral.” But a prior history is still an “aggravating” factor. Read: The Doctor’s Lawyer: Breaching privacy a cardinal offenceIn deciding that your unblemished history is effectively irrelevant when considering your penalty, the discipline tribunal said: “This is one factor among many and would not likely have changed the outcome in most or all the cases relied upon, particularly given that most were joint submissions.”What the discipline tribunal is saying here is that: much of the prior case law that weighed a good reputation as a “mitigating” factor were plea deals. In the discipline tribunal’s opinion, because those were plea deals, the outcomes of those cases likely would not have changed. As defence counsel, I’m not so sure about that. Often I see physicians who have felt pressured to enter into a plea deal with the college to avoid a contested discipline hearing. See also: Agreeing to a plea? What to know. In those cases, your defence counsel goes to the negotiating table with the college to hash out a deal that both sides can live with. Up until now, your lawyer would be able to use your unblemished reputation as leverage when negotiating a deal. But now, thanks to the discipline tribunal, your defence counsel has one less card to play at the negotiating table. The bottom line? This decision is a big win for the college. It also means that your defence requires a good legal strategy—whether you’re attempting to reach a deal or fight the charges. Brooke L. Shekter is the managing partner of Lloyd Shekter Health Law.

The Doctor’s Lawyer: When your good reputation doesn’t matter

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