The Discipline Process
The College promotes the public’s right to quality optometric care. Occasionally, incidents occur when standards of practice are not met or the regulations are breached. When this happens, the College protects the public by investigating complaints about the practice of optometrists through the Inquiries, Complaints and Reports Committee (ICRC).
When there are reasonable and probable grounds to suggest that professional misconduct has occurred, or that an optometrist may be incompetent, the ICRC may refer such allegations to the Discipline Committee for a hearing. If the optometrist is found to have committed professional misconduct or is found to be incompetent, the committee orders an appropriate penalty, the most severe being revocation of their Certificate of Registration.
Authority of the Discipline Committee
The Discipline Committee is the only committee of the College that has the authority to discipline optometrists. This authority is granted to the Committee under the Regulated Health Professions Act, 1991 (RHPA) and the Optometry Act, 1991. The RHPA’s Health Professions Procedural Code (the Code) sets out the procedures to be followed by the Discipline Committee.
The Discipline Committee is authorized to:
- hold hearings in relation to allegations of professional misconduct and/or incompetence; and
- when the allegations have been proven, to make an order which may include rehabilitative and/or deterrent measures.
Sections 36 to 56 of the Code apply specifically to the Discipline Committee’s process and decisions.
Professional Misconduct and Incompetence
The following are definitions of professional misconduct found in the RHPA. A referral to the Discipline Committee for a hearing may occur when an optometrist:
- has sexually abused a patient;
- commits an act of professional misconduct as defined in the College’s Professional Misconduct Regulation.
- has been found guilty of an offence that is relevant to their suitability to practise;
- has been found guilty of professional misconduct by a regulatory body outside of Ontario and the same act(s) would be considered professional misconduct in Ontario; or
- fails to cooperate with the Quality Assurance Committee or any of its assessors.
The Professional Misconduct Regulation under the Optometry Act, 1991 identifies acts of professional misconduct related to clinical practice as well as business practices.
The RHPA defines incompetence as professional care of a patient that displays a lack of knowledge, skill or judgment of a nature, or to an extent, that demonstrates that the optometrist is unfit to continue to practise or that their practice should be restricted.
The Discipline Hearing
A discipline hearing is a formal process, much like that of a court of law, conducted by a panel of the Discipline Committee. At a discipline hearing, the College and the optometrist against whom the allegations have been made are the parties to the proceedings. Hearings are open to the public unless the panel believes the public should be excluded because of public security, public interest or public safety.
The College is represented by its legal counsel (the prosecutor) and the optometrist has an option to represent themselves or to be represented by their legal counsel (the defence).
The role of the prosecutor is to present the College’s case by providing the Discipline Committee with evidence to prove the allegations against the optometrist.
The onus of proof is on the prosecution. The College is required to provide the optometrist and their lawyer with all relevant information obtained by the College during the investigation including written and documentary evidence that will be introduced, the identity of any expert witnesses, summaries of the evidence they will give, and the identity of any other witnesses who will appear. This information must be disclosed at least ten days prior to a hearing.
The defence counsel’s role is to represent the optometrist at the hearing. The defence does not share the same disclosure obligations as the prosecution. If an optometrist chooses to represent themselves at a hearing acting as their own defence, the optometrist has all the procedural rights afforded to the defence counsel.
The Discipline Committee Panel
The Discipline Committee is represented at the hearing by a panel of Committee members appointed by the Chair of the Discipline Committee. A panel is composed of three to five members of the Discipline Committee, including at least two public members of the College Council. The College ensures the integrity of the discipline process and protects the panel members from any reasonable apprehension of bias by carefully working with the Discipline Chairperson to ensure that those members being appointed to a panel have no prior knowledge of the allegations being heard.
At a hearing, the panel will:
- consider the allegations, hear the evidence and determine the facts of the case;
- determine whether the evidence proves the allegations;
- determine whether the optometrist has committed an act of professional misconduct or is incompetent; and
- order the penalty to be imposed where a finding of guilt or incompetence is made.
No member of a panel of the Discipline Committee can participate in a decision of the panel unless they were present throughout the entire hearing and heard all of the evidence and submissions presented by the parties.
Penalties Imposed by a Discipline Panel
If the Discipline Committee panel finds that the allegations have been proven, the panel will then hear submissions regarding penalty.
The panel can order one or more of the following penalties as defined in section 51 of the Code:
- direct the Registrar to revoke the optometrist’s certificate of registration;
- direct the Registrar to suspend the optometrist’s certificate of registration;
- direct the Registrar to impose terms, limitations or conditions on the optometrist’s certificate of registration for a specified or indefinite period of time;
- require the optometrist to pay a fine;
- require the optometrist to appear before the panel to be reprimanded (professional misconduct);
- require that the optometrist reimburse the College for monies provided to patients for counselling in sexual abuse cases; and / or
- require the optometrist to pay the College’s legal, investigation and hearing costs and expenses.
The three major considerations of the Discipline Committee panel when imposing penalty are:
- the effect on, and appropriateness for, the optometrist (reformation, rehabilitation and specific deterrence);
- the effect on future conduct of the profession (general deterrence); and
- the expression of regard and concern on behalf of the public interest about the conduct (punishment)
At the end of the entire process, the Discipline panel will issue a written decision and the reasons for their decision.
The optometrist and/or the College may appeal the decision of the Discipline panel to the Divisional Court of Ontario.