The Gazette (Montreal)

Saturday 11 September 1999

Policing professionals

Quebec's disciplinary code is recognized as one of the best

DEBBIE PARKES
The Gazette (Montreal)


CHRISTINNE MUSCHI, GAZETTE / Lawyer Frederic Sylvestre has served in many disciplinary cases in the province.

Some have alcohol or drug problems. A number are outright crooks. Many have made unintended but tragic mistakes.

Each year, several hundred professionals are called before the disciplinary committees of Quebec's 44 professional orders, which together oversee about 265,000 professionals, from land-surveyors to physicians and now midwives.

Little known to members of the public, the elaborate machinery for protecting them deals with cases that hold plenty of drama:

- A nurse mistakenly gave an elderly woman too much morphine. When she realized her mistake she panicked and said nothing, unaware of the existence of a drug that can reverse the effect of morphine, which depresses breathing. The patient died. The nurse was suspended for three months.

- A Quebec City-area lawyer was suspended from practicing for one year and fined $5,000 after she was found to have been having sex with the husband in a divorce case while representing both the husband and the wife.

- Last December a dentist was found to have regularly carried out work on healthy teeth.

The list goes on.

Psychologists have been found guilty of making recommendations in custody cases without having carried out the necessary tests and interviews.

Psychologists, doctors and nurses have been disciplined for having sexual relations with patients. Nurses, doctors and pharmacists with drug-abuse problems have been disciplined for appropriating and abusing prescription drugs.

Notaries and lawyers have been called before disciplinary committees to face charges of appropriating a client's money, or failing to deposit sums in a trust account. In 1998-99, the bar's compensation fund paid out nearly $900,000 to clients whose money had been wrongfully appropriated by 26 lawyers.

The compensation fund of the Board of Notaries paid out just under $1,037,000 to clients of 69 notaries. (The lawyers' order pays a maximum of $50,000 per claim; the notaries' maximum is $100,000 per claim.)

Only a small portion of professional-misconduct allegations ever come to the attention of the discipline apparatus. But when it's needed, it's there, and has been since 1973.

That's when the province adopted its Professional Code and set up the Office des Professions to monitor the functioning of professional orders. (Before 1994 they were called "corporations.")

There have been several amendments to the code since, a noteworthy one being that since July 1988, disciplinary hearings are open to the public. The names of citizens who bring complaints are kept secret, however.

Hearing rolls must be posted at the head office of the order not less than 10 days before the hearing date. Access to the record is public once hearings have begun. Likewise, decisions can also be consulted or obtained at the order.

Disciplinary committees are not meant as a substitute for the courts: depending on the nature of the wrongdoing, a professional can still be sued for damages in civil court or charged with criminal offences in criminal court.

However, the disciplinary committees can impose penalties different from those of the civil or criminal courts, and sometimes with greater ease.

For one thing, the "beyond a reasonable doubt" standard used in criminal court is a much heavier burden of proof than the "balance of probabilities" standard that applies in disciplinary law.

So, for instance, there may not be sufficient evidence for a judge to convict a professional of sexually abusing patients, but a disciplinary committee may still find the professional guilty, based on the "balance of probabilities," and suspend his or her right to practice.

Likewise, civil courts may order professionals to pay damages to aggrieved clients, but they don't have the jurisdiction to require the professionals to take professional upgrading or to work only under supervision until they have done so, or to stop them from practicing their profession.

The reputation of Quebec's disciplinary system in other parts of the country is considerable. The province is in many regards a pioneer and has served as a model for other provinces, several experts said.

Dennis Gartner, Alberta's assistant deputy minister of human resources and employment, pointed out that Quebec was the first province to institute a common disciplinary model to be used by various professional regulatory bodies.

"Quebec was one of the forerunners in developing a disciplinary system that was more open and transparent than others in the country at the time," Gartner said.

He noted in addition that Quebec was the first province to make hearings of misconduct allegations open to the public.

Lawyer Frederic Sylvestre, who has served in many disciplinary cases in Quebec, said: "No system is perfect, but Quebec's (professions) law is very strong."

Among the cases in which Sylvestre served is that of Micheline Parizeau, a high-profile divorce lawyer who has been accused of inciting perjury, destroying documents, fabricating and presenting false evidence, and grossly exaggerating the cost of her legal services. Parizeau is awaiting the result of her disciplinary hearing.

Sylvestre said Quebec's system "is considered to be a very good one."

This isn't to say there haven't been problems. In 1993, for instance, Dr. Augustin Roy, then head of the Quebec College of Physicians and Surgeons, stirred up public outrage when he ridiculed a woman who had laid a complaint of sexual abuse against her doctor, calling her crazy.

Other cases around that time, involving doctors who sexually abused patients, helped feed public cynicism about the self-monitoring of the orders.

Critics said it was apparent that the orders were more concerned about covering up their members' misdeeds than they were about protecting the public.

Sylvestre said he believes the orders have matured over the years. "Before, they were quite patriarchal. The attitude was that if you made a mistake, your peers looked after you. We washed our dirty laundry in private." But today, he said, there's a sincere desire to crack down on members whose practice isn't up to par.

Among several 1994 amendments to the Professional Code, one makes it possible to prevent professionals from practicing, or to limit their practice, if a court or regulatory body in another province has found them guilty of certain crimes.

Dr. Remi Lair, assistant secretary-general of the Quebec College of Physicians and Surgeons, pointed to the case of Hector Warnes, a psychiatrist who had lost his license to practice in Ontario for having sex with a patient, but who in 1992 was practicing at a Montreal hospital, even though the college knew about his past.

The college came under heavy public attack when that became known.

(Under Quebec's pre-1994 system, Lair said, the Quebec college would have had to hold its own disciplinary hearings to prevent Warnes from practicing here.)

Another 1994 change made it an offence for a member of any professional order to take advantage of his or her professional relationship with a client to have sexual relations with the client. (Some regulatory bodies already had such a provision.)

Liberal MNA Thomas Mulcair, a former president of the Office des Professions du Quebec, pointed to Quebec's requirement that each professional order check up on members periodically through an inspection program. As well, Quebec's system has a monitoring body - the Office des Professions - that can recommend changes to the government.

One recent recommendation adopted by Quebec, though not yet implemented, is to restrict use of the title "psychotherapist." At present, anyone can use that title, which has led to complaints that some patients may be misled into believing that a person using that title has met certain training standards.

Ben Van Den Assem, registrar of the Board of Registration for Social Workers of British Columbia - the equivalent to Quebec's order of social workers - noted in an interview that in B.C., if a social worker wants to stop the board of registration from investigating a complaint, he or she needs only to allow his or her membership to lapse. The board of registration then loses jurisdiction in the case.

Such is not the case in Quebec, where the professional orders' disciplinary apparatus retains the right to investigate and hand down penalties even after a resignation.

Some other features of Quebec's system:

- Under the Professional Code, each order must have a code of ethics, which must contain certain clauses including "provisions determining which acts are derogatory to the dignity of the profession."

- Professionals who are under investigation or inspection are required to answer all questions and to provide all relevant information. They can be brought before a disciplinary committee if they fail to do so.

- The Office des Professions can investigate allegations that a professional order is not doing its job properly.

- Each order is required to set up a system for arbitration of fees for clients who feel they have been overcharged.

- A professional order can require that a member undergo a physical or psychiatric examination where there is reason to fear that his or her state of health may endanger the safety of members of the public.

Sylvestre also noted that the disciplinary system is funded by the professional orders - not by taxpayers.

Nearly $3 million of the $12.3-million budget of the Quebec College of Physicians and Surgeons was spent on the investigation of complaints and the holding of disciplinary hearings.

In the Review

- The notary found guilty of embezzlement and appropriation of more than $300,000.

- The lawyer who, while representing a couple in a joint divorce application, had an affair with the husband.

- The physician who once showed up for work speaking incoherently, and another time had the smell of alcohol on his breath.

- The nurse who sprayed a patient's cologne in the air, insinuating that he smelled.

- The psychologist who accepted payment from two sources for the same work.

How Quebec's Professional Orders Are Classed

Quebec's 44 professional orders are divided into two categories:

- In the 24 "exclusive-practice" orders, membership in the order is required by law for anyone carrying out the work of:

Acupuncturists, agronomists, architects, land-surveyors, hearing-aid acousticians, lawyers, chemists, chiropractors, chartered accountants, dentists, denturologists, bailiffs, nurses, engineers, forestry engineers, midwives, physicians, veterinarians, notaries, dispensing opticians, optometrists, pharmacists, podiatrists, radiology technologists.

- In the 20 "exclusive-title" orders, only members have the right to use the professional title. However, others may do similar or the same kind of work as long as they do not use the restricted title. The names in parentheses are alternative titles that are equally restricted:

Certified management accountants, certified general accountants, dieticians (nutritionists), social workers, psychologists, industrial-relations counselors, guidance counselors, urbanists (town planners or city planners), chartered administrators (management advisers), chartered appraisers (chartered assessors), dental hygienists, dental technicians, speech therapists and audiologists, physiotherapists (physical therapists), occupational therapists, nursing assistants, medical technologists (registered technologists), applied-sciences technologists (professional technologists or professional technicians), registered respiratory therapists (technicians in inhalation therapy and anesthesia), certified translators and interpreters.

- Most of Quebec's professional orders are based in Montreal. If you need help tracking one down, call the Office des Professions du Quebec at (800) 643-6912.