The RHPA is umbrella legislation that applies to all 26 regulated health professions in Ontario. On May 1, 2018, a number of changes to the RHPA came into effect as part of the implementation of the Protecting Patients Act, 2017, including legislative amendments and the introduction of three new regulations.
A number of these changes relate directly to the implications of charges, conditions of release and findings of guilt in respect of criminal matters.
The following are the key takeaways for criminal counsel who act for regulated health professionals (“health professionals”):
- Findings of Guilt in Certain Criminal Matters Will Result in Mandatory Revocation
As of May 1, 2018, if a health professional is found guilty of certain sexual offences under the Criminal Code, they will also be subject to a mandatory revocation of their certificate of registration.
As set out in Ontario Regulation 261/18 – Information Prescribed Under Subsection 23(2) of the Health Professions Procedural Code, under the RHPA, these offences include sexual interference (s.151); invitation to sexual touching (s.152); sexual exploitation (s.153); sexual exploitation of a person with a disability (s.153.1); bestiality in the presence of or by a child (s.160(3)); voyeurism (s.162); publication etc., of an intimate image without consent (s.162.1); child pornography (s.163.1); parent or guardian procuring sexual activity (s.170); making sexually explicit material available to a child (s.171.1); luring a child (s.172.1); agreement or arrangement – sexual offence against a child (s.172.2); sexual assault (s.271); sexual assault with a weapon, threats to a third party or causing bodily harm (s.272); and aggravated sexual assault (s.273).
Criminal counsel need to be extremely mindful of this change, especially when negotiating a resolution of criminal charges in respect of one of the enumerated sexual offences. It goes without saying that, in most cases, pleading guilty to one of the enumerated sexual offences will no longer be a viable consideration.
- Reporting Criminal Charges and Conditions of Release to Regulatory College
All health professionals must report all outstanding charges that have been laid against them, including charges under the Criminal Code, as well as corresponding conditions of release, including bail conditions and/or other restrictions, to their regulatory college as soon as reasonably practicable.
In considering this requirement, please keep in mind that it includes charges laid prior to May 1, 2018 that have not been resolved. On the contrary, charges that were resolved prior to May 1, 2018, do not have to be reported, provided that the charges did not result in a guilty finding. Note that health professionals have been required to report findings of guilt under the Criminal Code to their regulatory college since 2009, as set out under subsection 85.6.1 of the Health Professions Procedural Code of the RHPA.
- Posting of Additional Information on the Public Register
As of May 1, 2018, all regulatory colleges are now required to post the following information about their members (i.e. health professionals) on the public register, which is available online:
(a) Criminal Charges
All outstanding charges under the Criminal Code, including the fact of the charge; a brief summary of the charge; and the date and place of the charge. This includes charges laid prior to May 1, 2018, that have not yet been resolved.
(b) Findings of Guilt in Criminal Matters
All findings of guilt under the Criminal Code, including a brief summary of the finding; a brief summary of the sentence; and if the finding is under appeal, a notation of that fact until the appeal is resolved.
Health professionals who have been found guilty of an offence under the Criminal Code should strongly consider taking steps to obtain a record suspension or a pardon, which would result in the removal of the guilty finding from the public register.
(c) Conditions of Release
Any currently existing bail conditions or other conditions of release flowing from a charge under the Criminal Code.
Conditions of release imposed pending an appeal of a finding of guilt under the Criminal Code will also be posted.
Conclusion
As the above changes could result in significant repercussions for health professionals in the criminal justice system, it is important that their criminal counsel are well aware of them.
As a final note, in my experience, the interests of health professionals facing criminal charges are best protected when criminal counsel and health law counsel work in tandem to ensure that both the criminal and regulatory considerations are addressed in a complementary and comprehensive manner.
About the Author
Lad is certified by the Law Society of Ontario as a Specialist in Health Law and is recognized by Best Lawyers in Canada (Health Care Law). As part of his health law practice, he provides advice and representation to health professionals regarding the full spectrum of matters falling under the governance of their regulatory colleges, including registration, fitness to practice, complaints, investigations, discipline, etc.
He can be reached by telephone at 416.864.3114 or by email at lkucis@grllp.com.
Any article or other information or content expressed or made available in this Section is that of the respective author and not of the OBA.