THE RESTATEMENT HEARING IN THE DISCIPLINE PROCESS: ETHICS and guidelines
by Brian Donohue
A reinstatement hearing has a unique place in the discipline process of regulated health care professions. It is essential that such a hearing not be confused with the original finding of revocation that preceded it. The point of departure for this paper is an actual reinstatement hearing that I presided over as chair of the discipline committee of the College of Massage Therapists of Ontario. I outline the guidelines we used in that case and the creative solution we sought to achieve. I also describe the ethical considerations that should be central to any reinstatement hearing.
THE REINSTATEMENT HEARING IN
THE DISCIPLINE PROCESS
Ethics and Guidelines
The revocation of the license to practice in a regulated health care profession has frequently been referred to as professional capital punishment. However, unlike the grisly act from which the analogy is drawn, one can ask, must the revocation necessarily be permanent? Theoretically, at least, in many jurisdictions, the answer is no. For example, in the province of Ontario, Canada, regardless of the seriousness of the offence, provisions exist for even the most grievous of offenders to apply for reinstatement. No doubt there are many cases where a discipline panel may find it difficult, if not impossible, to direct the Registrar to issue a new certificate of registration. However, it is appropriate that the legislation provides for this possibility and establishes conditions under which reinstatement can be applied for and granted.
Creating a procedure for reinstatement constitutes a recognition of the ethical status of the person whose certificate of registration has been revoked. Such a recognition in no way minimizes the judgement of the original actions that produced the revocation. Rather, it declares that human beings are ethical agents and as such are capable, at least in principle, of fundamental changes in their beliefs, outlook and actions. It still remains the case that any person seeking to convince a discipline panel that a reinstatement is justified has the burden of proof to demonstrate to the panel that such an ethical transformation has taken place. If there was harm to victims as part of the original revocation, then this must be factored in. Indeed, the more serious the original transgression, the more difficult it would be for the applicant to convince the panel that reinstatement is justified. Put simply, the greater the transgression the more arduous the path to rehabilitation. Further, the safety of the public is another critical factor. The goal of this paper is to focus on a reinstatement hearing where the theoretical acknowledgement as to the ethical status of the applicant can have real practical import. The kind of case I am concerned with is where a discipline panel concludes that the applicant has a genuine desire to rehabilitate himself and possesses a genuine feeling of remorse for the actions that brought him to be revoked in the first place. In doing so, I shall draw on the experiences acquired in an reinstatement hearing that I presided over as chair for the discipline committee of the College of Massage Therapists. Before describing the case and the innovative solution arrived at by our panel, I shall first outline the guidelines that we adopted. I then make some remarks on ethical agency and the principles that provide the rationale for rehabilitation. I conclude by connecting my theoretical observations to the actual case.
Guidelines for Assessment
There are many facets to the original process of revocation that are quite irrelevant to a reinstatement hearing. The original hearing has already made a fact determination and meted out the sanctions. Further, the applicant in a reinstatement hearing cannot demand that the panel revisit the original verdict. Accordingly, there is much information that the discipline panel can accept as given. However, the danger that exists is that the panel will automatically construe the original finding of guilt as determinative of this new hearing. If a panel falls into such a trap this would completely subvert the reinstatement process.
It is precisely the point of the reinstatement hearing to determine whether the circumstances of the applicant have sufficiently altered so as to warrant reinstatement. Regardless of the nature of the original offence, if the applicant is to be treated as an ethical agent then he must be given the opportunity of demonstrating that he has been rehabilitated. If the applicant freely admits his guilt and offers solid proof of change, then, the discipline panel has the responsibility to assess the credibility of these claims. To that end, factors that were completely irrelevant in the first hearing could well be crucial. For example, a public admission of guilt in front of ones family at the reinstatement hearing could weigh heavily in demonstrating genuine remorse.
A discipline panel should look carefully at any evidence that is introduced to support the applicant. An unreported case of the Law Society of Upper Canada, Re Goldman, provides an excellent example of how this can be done. Gordon David Goldman was a lawyer who was disbarred for criminal activities associated with an addiction to gambling. After a period of imprisonment, he went to great lengths to change his life. Over a protracted period of time he took treatment for his gambling addiction and became a prominent participant in programs designed to help members of the bar avoid his errors. Further, he remained active in his legal studies and voluntarily took retraining courses. Finally, his application for reinstatement was supported by many distinguished members of the profession. On this basis, the Law Society determined that Mr. Goldman was rehabilitated and intellectually qualified to practice law. The test the Law Society used to justify reinstatement was the satisfaction of a quite onerous burden of proof. Mr. Goldman had to demonstrate that "special circumstances" warranted his reinstatement and he had to provide "substantial and satisfactory evidence" to make this case.
In sum, it is not sufficient for an applicant to express remorse and assert a desire to change. The applicant must satisfy the panel in a reinstatement hearing that (1) rehabilitation has taken place and (2) that he has the required expertise to practice the profession once again. In reaching a decision for reinstatement, the discipline panel must be convinced that the evidence supporting these findings is definitive and unambiguous.
By offering an applicant the opportunity for reinstatement while simultaneously insisting on a high standard of proof, a discipline panel achieves two objectives. First, the panel meets its most fundamental responsibility of protecting the public through ensuring that the licensed members of the profession are competent practitioners. Second, the panel is also respecting the ethical status of the applicant by recognizing that people are capable of accepting responsibility for their actions and have the ability to make important modifications in their lives. However, and this is crucial, it is not sufficient for a discipline panel merely to make a determination as to the state of mind of the applicant. A panel may conclude that an applicant experiences genuine remorse and has a real desire to change. But, unless the panel is certain that the desire to change has resulted in actual change, the panel must deny reinstatement. Further, as already noted in Re Goldman, another necessary condition is that the panel is satisfied that the applicant possesses the expertise to be a competent practitioner of the profession.
It has already been observed that a reinstatement hearing can never be treated as equivalent to the original hearing of revocation. I should now like to bolster that observation with a brief argument.
Accountability for a past wrongful action is always couched in terms of assigning blame. Indeed, the determination of a sanction always includes a calculation as to the severity of the ethical transgression. Accordingly, if we are to be consistent in a reinstatement hearing with the premises of the original revocation hearing, then, we must continue to treat the transgressor as an ethical agent. To that end, accountability for past actions must always leave room for rehabilitation. Therefore, it is important that each member of a discipline panel have a committed open mind at the outset of a reinstatement hearing. Regardless of the nature of the original offence, every applicant for reinstatement is entitled to be heard. The panel may conclude that the applicant has not made his case. Nonetheless, it is the duty of the panel to avoid zealotry at all costs. Just as it is the responsibility of a discipline panel to revoke a licence when the relevant prohibited acts have been committed, so too, a panel has the duty to consider carefully any serious application for reinstatement. The legislation legally requires that we do so and so does the applicants status as an ethical agent.
On the basis of the criteria outlined in section I, a discipline panel may find itself in the dilemma that we encountered in a reinstatement hearing at the College of Massage Therapists of Ontario. We heard a case where the panel was convinced that there was genuine remorse but the two key ingredients were not satisfied. Namely, the panel was not convinced that the applicant was fully rehabilitated. Further, there was also a concern that his professional skills required upgrading because of the three year hiatus between the original revocation and the time of the reinstatement hearing.
The panel was anxious to engage the applicant as a responsible ethical agent and encourage him on his journey of rehabilitation. Accordingly, although we denied his application for reinstatement, we also wanted to communicate to him what the panel envisaged as the necessary conditions that must be met for reinstatement. To that end, the panel took the opportunity of using the reasons for decision to convey to the applicant what steps we thought he should take if he wished to achieve reinstatement.
The panel outlined four conditions that we felt would, if satisfied, warrant reinstatement. These were:
As a technical legal matter, no subsequent discipline panel of the College would be bound by our recommendations. Nor did these recommendations preclude the applicants right to apply again for reinstatement under the provisions of the Ontario Regulated Health Professions Act, 1991. Notwithstanding these considerations we believed we were achieving several important objectives by taking this route. We were accentuating the fact that the reinstatement process has a very different structure from an original revocation hearing. Second, we were making clear that remorse is not enough. Any applicant for reinstatement has an onerous burden of proof that must be met before a discipline panel can recommend reinstatement. Third, we were acknowledging that the applicant had made progress towards rehabilitation thereby engaging him as an ethical agent. Finally, we were rigorously applying the criteria for reinstatement as outlined in Re Goldman.
If the panel had been content to deny reinstatement without providing guidelines, we may well have been construed to be merely reinforcing the original decision for revocation. Thus, we came to the conclusion, and this may be useful to other discipline panels, that any serious effort to apply for reinstatement must be respected on its merits. Accordingly, where a panel cannot find sufficient grounds to find for reinstatement, but believes that progress has been made, the drafting of a recommended program of rehabilitation and retraining may well occupy an option the panel can consider. A discipline panel could use this strategy to invite the applicant to strive to make further progress. This way of treating the applicant, namely as a responsible ethical agent, signals that the path to reinstatement is not impossible. It also preserves the basic intent of the legislation.
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