I recently sat down with two of my colleagues to discuss our roles as counsel for Complaints Directors of self-governing professions. We hope to provide insight on the practical aspects of advising the Complaints Director and on advocating before disciplinary tribunals.
Who is our client?
Because we practise in Alberta, our client is the Complaints Director for a college that regulates health professionals. Complaints Directors are usually regulated members of the college. Their expertise and insight into the practice of the profession helps them to identify when a practitioner’s conduct does not accord with expected standards of behaviour.
The Complaints Director has duties and delegated authority under governing legislation; in Alberta, it is the Health Professions Act. The Complaints Director receives complaints and oversees investigations before deciding whether to terminate a complaint or refer it to a hearing before an independent tribunal. At the hearing, the Complaints Director brings forward charges of unprofessional conduct or professional misconduct.
What does legal counsel for the Complaints Director do?
The Complaints Director is generally responsible for the entire discipline process leading up to a hearing.
Legal counsel typically has limited involvement during investigations. Occasionally, the Complaints Director may ask for our advice on the powers of investigators or about interpretations of provisions in the Health Professions Act (or similar legislation in other jurisdictions). During an investigation, the Complaints Director may also identify and consult with experts in particular areas of health care. Legal counsel to the Complaints Director may assist by formulating discrete questions for an expert report.
After an investigation is finished, the Complaints Director may ask us for a legal opinion about possible charges and the likelihood that we will be able to prove the charges on a balance of probabilities. It is ultimately the Complaints Director’s decision as to whether the investigation into a complaint should be terminated or referred to a hearing. (Unlike Crown prosecutors, counsel for the Complaints Director can’t decide whether there is a “reasonable prospect of conviction.” We may only advise.)
If the Complaints Director terminates an investigation, they may ask us to review their letter to the regulated member and the complainant. In Alberta, the complainant can request that a Complaint Review Committee review the Complaints Director’s decision to terminate the investigation. The Complaint Review Committee can uphold the termination, direct additional investigation, or refer the complaint to a hearing.
At a hearing, we will bring forward a case to prove the charges that the Complaints Director or a Complaint Review Committee referred to a hearing. We get to learn about medical procedures and consult with experts about how procedures should be properly performed.
In Alberta, the regulated member or the Complaints Director can appeal to an Appeal Panel composed of members of the Council for the health college. Both parties can then further appeal to the courts. As legal counsel for the Complaints Director, we are advocates at both levels of appeal.
Occasionally, we may be asked to advise about possible changes to the structure of a regulator’s discipline process. We provide legal advice about how certain elements may be changed to increase procedural fairness or to increase efficiency. With an observed rise in the number of self-represented members and increasing hearing complexity, we regularly weigh and evaluate the fairness of a process alongside the broader college’s responsibility to hold a functioning and timely discipline process.
What are the differences between Criminal prosecutors and Complaints Directors at hearings?
As counsel for the Complaints Director, there are a few quirks to our practice that differ from a Crown prosecutor. Criminal prosecutions occur in court. They involve rules of evidence. Health college prosecutions happen in the domain of administrative law, where the rules of evidence don’t strictly apply. Hearing tribunals can consider the rationales underlying court rules of evidence, which can influence the ultimate weight attributed to evidence or decisions about hearing procedure.
The tribunals we appear before are composed of members of the profession and of the public. Generally, they are not legally trained. The public members come from a variety of different backgrounds.
As counsel to the Complaints Director, we must persuade a discipline tribunal that facts occurred on a balance of probabilities, not the criminal standard of “beyond a reasonable doubt.” Our decision-makers must be persuaded that a fact is more likely to have occurred than not.
While the stakes of a hearing are not as high as a criminal process where an accused may face imprisonment, the outcome of a discipline proceeding can significantly impact an individual and their well-being. We must advocate in the public interest while also ensuring that discipline is proportionate to the proven conduct.
Advocacy tips for appearing before Health College Tribunals
Our advocacy styles before a hearing tribunal are different than before a justice in court. If you are considering how to present your case to a hearing tribunal, there are elements worth consideration:
- Hearing tribunal members are not legally trained: Hearing tribunal members are usually members of the profession and members of the public. They may not be familiar with the hearing process or with the nuances of factual or legal issues.
- Hearing tribunal members may not love lawyers: The experience of hearing tribunal members varies. Some hearing tribunal members may sit on one or two hearings in a year. They may not be familiar with the way lawyers cross-examine/question witnesses or make arguments. Hearing tribunal members may not be as comfortable with forms of cross-examination or “resolute advocacy” that are effective in court before justices who are very experienced with the process.
- Hearing tribunal members have past careers: Hearing tribunal members’ past careers can inform their understanding of the evidence or our arguments. Sometimes, tribunal members ask questions that arise from concerns in their past careers. The question may not be immediately relevant, but it may also affect the tribunal member’s emotional response to the case.
What trends do we see in the disciplinary realms of health colleges?
The last thing we would observe are the recent trends we see in the world of professional discipline. While we lack hard data (and would welcome related research), we share the same impressions:
- The volume of complaints to colleges about health practitioners has substantially increased;
- There are more complaints about health practitioners’ conduct outside professional practice;
- We are nearing the end of the discipline matters about COVID-related complaints.
Ashley Reid is an Associate at Shores Jardine LLP in Edmonton, Alberta and a Branch Co-Chair of the CBA Health Law Section Executive.