Excellent Discipline Outcomes: Plea Bargains & the Public Interest

1. 2007 Annual Conference Excellent Discipline Outcomes: Plea Bargains & the Public Interest Moderator: Michelle Winters

2. 2007 Annual Conference Initiating the Plea Bargain Process Bruce G. Matthews, P.Eng. Professional Engineers Ontario

3. Overview • Semantics • Frameworks for the Plea Bargain Process • Informal / Unstructured Frameworks • Formal / Structured Frameworks • Implementation Considerations Council on Licensure, Enforcement and Regulation

4. Semantics • “Plea bargain” – a dirty word? • Implies a trade-off • Perception that the public interest takes a back seat to cost savings / expediency • Perception that the registrant only wants to minimize cost and inconvenience • Perception that not all of the relevant facts will come to light • “…a deal between the lawyers…” Council on Licensure, Enforcement and Regulation

5. Semantics con’t • Alternative wording: • “Agreed settlement” • “Negotiated resolution” • Any process that results in some form of admission regarding the conduct in question, plus a joint submission with respect to appropriate sanctions in view of that admission Council on Licensure, Enforcement and Regulation

6. Informal / Unstructured Frameworks • Open & unlimited • “Reach out and touch someone…” • “without prejudice” • Policy-based approach • When to seek a negotiated resolution • Initial contact parameters • Scope of negotiations • “without prejudice” Council on Licensure, Enforcement and Regulation

7. Informal Frameworks con’t • Benefits • Less structure can allow for more creative solutions • Parties have control of the process • Risks and limitations • Disclosure of strategic information by defence • Consistency in approach • No guarantee re: Discipline Committee acceptance Council on Licensure, Enforcement and Regulation

8. Formal / Structured Frameworks • Processes or activities involving one or more members of the Discipline Committee • Processes or activities prescribed in legislation, regulations or rules • Pre-hearing conference • Mandatory “mediation” Council on Licensure, Enforcement and Regulation

9. Formal Frameworks con’t • Pre-hearing conference • A meeting involving the parties plus one or more members of the Discipline Committee • Multiple objectives (confirm disclosure, narrow the issues, address procedural matters, assess merits and promote settlement) • Typically “without prejudice” Council on Licensure, Enforcement and Regulation

10. Formal Frameworks con’t • Mandatory mediation • A process involving the parties plus a member of the Discipline Committee • Specific goal is a mutually acceptable resolution (to be ratified by a formal Discipline Panel at a hearing) • Compulsory participation (though can still be “without prejudice”) Council on Licensure, Enforcement and Regulation

11. Formal Frameworks con’t • Benefits • Insight into Discipline Committee perspective • Risks and Limitations • Disclosure of strategic information by defence • Can be heavy-handed Council on Licensure, Enforcement and Regulation

12. Implementation Considerations • Best to begin with informal / unstructured approaches • Focus on the outcome • Dealing with perceptions: Communications is key! Council on Licensure, Enforcement and Regulation

13. Contact Information Bruce G. Matthews, P.Eng. Manager, Complaints & Discipline Professional Engineers Ontario 25 Sheppard Avenue West, Suite 1000 Toronto, Ontario M2N 6S9 T: 416-840-1076 F: 416-224-9974 E: bmatthews@peo.on.ca Council on Licensure, Enforcement and Regulation

14. 2007 Annual Conference Principles & Objectives of Discipline Sanctions Dayna Simon, BA, LLB, MS Royal College of Dental Surgeons of Ontario

15. Principles & Objectives of Discipline Sanctions • Penalty Rationales on Sentencing • Mitigating Factors • Aggravating Factors Council on Licensure, Enforcement and Regulation

16. Penalty Rationales • Principles & objectives of Sentencing at a Discipline Hearing are very similar to those at a Criminal Trial Council on Licensure, Enforcement and Regulation

17. Penalty Rationales Cont’d Four Main Rationales/Objectives of Penalty: • Specific Deterrence • General Deterrence • Rehabilitation • Protection of the Public Interest Council on Licensure, Enforcement and Regulation

18. Specific Deterrence • Specific Deterrence means a deterrent to the member in question • Sanction should be severe enough to dissuade the specific member from re-offending in the future • Punishment for the sake of punishment Council on Licensure, Enforcement and Regulation

19. Specific Deterrence Cont’d Example: If the penalty for $500,000 of insurance fraud is merely a reprimand, a 1 month suspension of license and a $10,000 fine, member may not be sufficiently persuaded that the conduct should not be repeated. Council on Licensure, Enforcement and Regulation

20. Council on Licensure, Enforcement and Regulation

21. General Deterrence • General Deterrence is deterrence for the membership or the profession at large • One objective of sentencing is to discourage similar-minded members from committing similar acts of misconduct Council on Licensure, Enforcement and Regulation

22. General Deterrence Cont’d Example: • General deterrence is accomplished not only by the severity of the penalty but also by the governing body’s ability to make the penalty known to the profession at large • Often discipline case summaries are published on the governing body’s website or in its member journal or news bulletin Council on Licensure, Enforcement and Regulation

23. Rehabilitation • The aim of Rehabilitation is to re-train the member so that he or she can be a more productive member of the profession and better serve his or her patients or clients • Rehabilitation is intended to insure that past mistakes are not repeated in the future Council on Licensure, Enforcement and Regulation

24. Rehabilitation Cont’d • Rehabilitation is increasingly becoming a more and more important aspect of penalty, as it is tied in with public interest protection Council on Licensure, Enforcement and Regulation

25. Rehabilitation Cont’d Aspects of Rehabilitation can include: • Remedial Courses; • Practice Assessments; • Practice Monitoring; • Mentoring Council on Licensure, Enforcement and Regulation

26. Protection of the Public Interest • Protection of the public is the mandate of a regulatory body or agency and is the overriding principle and objective of any penalty; • This awesome duty/responsibility should not and can not be taken lightly by the regulator Council on Licensure, Enforcement and Regulation

27. Protection of the Public Interest Cont’d • If the public interest does not appear to be protected then public confidence in the profession and its ability to regulate itself may be called into question Example: • Possibility of doctors in United Kingdom losing the right to self-regulate by 2008 Council on Licensure, Enforcement and Regulation

28. Protection of the Public Interest Cont’d • Regulators must be mindful that there is often media attention and public scrutiny of discipline cases and penalties • Bottom Line: The public interest must be protected • Sometimes public interest protection can only be accomplished by suspension or complete removal of licensure / privileges Council on Licensure, Enforcement and Regulation

29. Mitigating Factors • At a Discipline Hearing, panel or committee will often be asked to consider MITIGATING factors in determining an appropriate and fair penalty • Mitigating Factors do not go to the guilt or innocence of the member but rather may be a consideration on sentencing. Council on Licensure, Enforcement and Regulation

30. Mitigating Factors Cont’d • Mitigating Factors should not excuse the conduct but may provide some explanation as to the circumstances that led to the conduct! Council on Licensure, Enforcement and Regulation

31. Council on Licensure, Enforcement and Regulation

32. Mitigating Factors Cont’d Mitigating Factors may include: • First appearance at Discipline; • A long, unblemished professional record; • Member new to the profession; • Co-operation with the Investigation; Council on Licensure, Enforcement and Regulation

33. Mitigating Factors Cont’d • Expressed Remorse; • Apologized to Victim; • Personal or Family Crisis at Time; • Substance Addiction; Council on Licensure, Enforcement and Regulation

34. Mitigating Factors Cont’d • Mental Illness; • Self-Initiated Rehabilitation; • Volunteer/Pro-Bono Work; • Made Restitution; Council on Licensure, Enforcement and Regulation

35. Mitigating Factors Cont’d • Member was a “dupe”; • Guilty plea to charges; • Participation in reaching a proposed resolution through pre-hearing Council on Licensure, Enforcement and Regulation

36. Mitigating Factors Cont’d • AND THE LIST GOES ON….. (And is only limited by the lawyer’s imagination..) Council on Licensure, Enforcement and Regulation

37. Aggravating Factors • At a Discipline Hearing, panel or committee may also be asked to consider AGGRAVATING factors in determining an appropriate and fair penalty • Like Mitigating Factors, Aggravating Factors do not go to the guilt or innocence of the member but rather may be a consideration on sentencing. Council on Licensure, Enforcement and Regulation

38. Aggravating Factors Cont’d Aggravating Factors May Include: • Repeat Offender (at Discipline); • Misconduct Pervasive in Practice; • Conduct occurred over long time period; • Conduct was Deliberate; Council on Licensure, Enforcement and Regulation

39. Aggravating Factors Cont’d • Conduct continued during time member knew he/she was under investigation; • Member targeted vulnerable population (i.e. young, elderly or disabled); • Conduct particularly offensive/egregious; • No expression of remorse or restitution; Council on Licensure, Enforcement and Regulation

40. Aggravating Factors Cont’d • Member attempted to mislead investigator or Discipline Committee; • Destroyed or Altered documentation or evidence; • Involved others/staff in misconduct Council on Licensure, Enforcement and Regulation

41. Ultimate Objective • The ultimate objective is to reach a penalty that is fair and reasonable on the individual facts of the case; • Penalty should balance punishment, rehabilitation, deterrence and satisfy public interest protection Council on Licensure, Enforcement and Regulation

42. Council on Licensure, Enforcement and Regulation

43. Speaker Contact Information Dayna Simon, BA, LLB, MS Assistant to the Registrar, Legal Royal College of Dental Surgeons of Ontario dsimon@rcdso.org (416) 934-5618 (direct) Council on Licensure, Enforcement and Regulation

44. 2007 Annual Conference “Balancing the Public Interest Against Fairness to the Member and Minimizing Costs” Bonni Ellis, MA, JD College of Nurses of Ontario

45. Balancing the Public Interest • Whose “interests” are affected by an adjudicative outcome? (i) individual member (ii) membership (iii) complainant/ “aggrieved” party (iv) general public (v) the administration of justice Council on Licensure, Enforcement and Regulation

46. Defining “the Public Interest” • What does “the public interest” mean in the context of plea bargains? (i) outcomes that protect the public (ii) consistent/predictable results (iii) outcomes that are responsive to current trends/concerns (iv) the responsible use of available resources Council on Licensure, Enforcement and Regulation

47. Public Protection • Does the proposed plea bargain protect the public? • What is the likely range of penalty if there are findings at a contested hearing? • Does the plea bargain adequately address all facets of the conduct? • Does the proposed penalty address all of the relevant principles of sentencing? Council on Licensure, Enforcement and Regulation

48. Consistent/Predictable Results • Is the proposed plea bargain consistent and predictable? • Does the proposed penalty fall within the range of penalty ordered in similar cases? • Does the proposed penalty adequately account for significant factual differences? • Is the manner in which the facts are presented consistent with prior cases? Council on Licensure, Enforcement and Regulation

49. Responsive to Current Trends/Concerns • Does the proposed plea bargain address current/emerging trends and concerns? (i) Is the conduct new? (ii) Does the conduct erode public confidence in the profession? (iii) Will the proposed penalty clearly communicate the regulatory body’s view of the conduct? Council on Licensure, Enforcement and Regulation

50. Responsible use of Resources • How does the availability of resources impact the use of plea bargains? • What resources would be required for a hearing? • How serious is the current matter relative to others in the discipline stream? • How close is the proposed penalty to what would likely be imposed at a hearing? • How strong is the evidence and what are the risks of testing that evidence at a hearing? Council on Licensure, Enforcement and Regulation