The Ontario Physicians and Surgeons Discipline Tribunal Interim Practice Direction on Reprimands
Introduction
This practice direction provides guidance and clarity for parties and other participants in Tribunal proceedings on the use of discretionary reprimands. It does not apply to cases where a finding of sexual abuse has been made. In such cases, a reprimand is mandatory and must be ordered by the Tribunal in accordance with Section 51(2) of the Health Professional Procedural Code, Schedule 2 to the Regulated Health Professions Act, 1991, SO 1991, c. 18, the Tribunal’s governing legislation.
This practice direction advises parties of an interim approach to the ordering of discretionary reprimands by the Tribunal, from January 1st to June 30th, 2024.
An Interim Approach
Generally, the Tribunal has issued a reprimand in every case, even where not mandatory to do so. Accordingly, the parties have not typically made submissions about reprimands.
During the interim period, beginning January 1, 2024, the Tribunal asks that the parties make submissions about the desirability and purpose of a reprimand in each case, including in circumstances where the matter is proceeding by joint submission. This will assist the Tribunal in developing updated jurisprudence and/or policies on when reprimands will be ordered and their content. For background, please see College of Physicians and Surgeons of Ontario v. Fagbemigun, 2022 ONPSDT 22.
Guidance for Parties
When making submissions on penalty, both parties are expected to present their arguments on whether a reprimand should be issued. These submissions should include the rationale in favour of or against a reprimand. Parties’ submissions should be rooted in the specific circumstances of the case. Further, parties may wish to explain how a reprimand is or is not consistent with the principle of right-touch regulation.
Reprimands Must Meet Regulatory Objectives
The Tribunal, in exercising its discretion, will consider whether and how reprimanding the member or former member would serve the purpose of regulating physician conduct in the public interest.
To illustrate, in College of Physicians and Surgeons of Ontario v. Otto, 2023 ONPSDT 1, the Tribunal did not order a reprimand. This decision was based on the member’s non-participation in the hearing, rendering their attendance at the reprimand improbable. Furthermore, the Tribunal held the view that the publicly available written reasons for decision sufficiently conveyed the Tribunal’s condemnation of the physician’s actions, making a reprimand an unproductive duplication.
The Tribunal will consider whether to issue a reprimand within the broader context of all regulatory tools arising from the Tribunal’s findings and penalty order, including its written reasons for decision. These resources are readily accessible to the parties and public, upholding transparency and accountability in the Tribunal’s decision-making process.
Providing Feedback
The Tribunal invites feedback about its approach to discretionary reprimands during this interim period. Please send any comments to tribunal@opsdt.ca no later than June 30, 2024.
Revised: May 15, 2024