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the case
The regulation of professions is focussed on the protection of the public, and an important element of that protection is a regulator’s ability to inform the profession and the public about disciplinary action taken against its members and their outcomes. Members subject to ongoing disciplinary proceedings, however, often view publication as an unnecessary and harmful element of the process, particularly where the proceedings have not fully ended.
Earlier this year, the Court of Appeal dealt with the tension inherent in this issue. A member of the College of Dental Surgeons of Alberta was found guilty of unprofessional conduct by a hearing tribunal. That decision was upheld by a panel of the College’s Council. In the context of a further appeal to the Court of Appeal, the Court stayed the operation of the Appeal Panel’s decision pending the outcome of the appeal.
Following the stay decision by the Court of Appeal, the College posted online a summary of the hearing tribunal decision, the council decision and the fact of the appeal to the Court of Appeal. That post included a summary of the five findings of unprofessional conduct against the member. Similar information was subsequently re-published in the College’s newsletter.
The member applied to the Court of Appeal for an order directing that those publication be removed and that the College be prohibited from future publications pending the outcome of the substantive appeal to the Court. He claimed that the publications caused him and his family extreme emotional distress, that the publications were misleading, and that the findings were still subject to an ongoing appeal process.
The Court denied the application. While it found that there was a serious issue and that the member might suffer irreparable harm to his professional reputation if the order was not granted, it ultimately determined that the strong public interest in transparency and reporting of disciplinary matters by a regulator to the public outweighed any harm that might be experienced by the member. Importantly, the Court noted that a professional regulator which is tasked with self-regulating in the public interest is entitled to a degree of defence in making these decisions.
our two cents for free
Questions of when to publish information about disciplinary processes and what specifically to publish are important and require a careful analysis. Specific attention must be paid to the provisions of the statute which authorize publication, any delegated guidelines which address the issue, and any direction given by the disciplinary decision-maker. Accuracy is important, and ensuring that information remains accurate over time is vital.
question
Does your organization have any guidelines relating to when publications are made regarding disciplinary processes, and is a specific person designated to ensure that those publication remain accurate over time?
Eye on Regulation is RMRF’s monthly newsletter for the professional regulatory community. Each month we offer:
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