A complaint may be referred to a hearing if the evidence presents reasonable grounds of professional misconduct or unskilled practice has occurred. The Health Disciplines Act (HDA) contains a number of procedures or steps to be followed in order to bring a registered practitioner before a hearing tribunal to answer for their conduct. These conditions have been imposed by the legislature and must be complied with to the strict letter of the law.
A Hearing Tribunal is a quasi-judicial tribunal; in that they have the authority to determine if any set of actions constitute professional misconduct or unskilled practice and to impose sanctions if professional misconduct or unskilled practice is found. For this reason, Hearing Tribunals have a duty to conduct its proceedings in accordance with the requirements of natural justice, procedural fairness, in accordance with legislation and follow the order found in the Hearing Guide.
The Registrar and/or Chair, as the case may be, on review of an investigation report filed under Section 29(8) of the HDA may direct a complaint to be referred to hearings if there is sufficient evidence of unskilled practice or professional misconduct. On determination of a discipline hearing, the complainant, investigated registered member and the Health Disciplines Board will be advised of the date, time and location of the hearing.
Notice of Hearings and Charges
College Administration, on behalf of the Chair, and in consultation with necessary parties will determine the date(s), time and location of the hearings.
The charges against the registered practitioner will be determined given the findings of the preliminary investigation.
Role of Hearing Tribunal
The Hearing Tribunal consists of three (3) individuals – all three may be from the EMS profession or one of them may be a public appointee. A Hearing Tribunal is best described as an administrative tribunal whose role and responsibility is to hear submissions (oral/written submissions, evidence, witness testimony, etc) from the investigated registered practitioner and the College with respect to the charges and determine if the charges have been proven.
During the course of the hearing, the Hearing Tribunal may respond to questions about the procedure used in conducting the hearing or ask clarifying questions of the investigated registered practitioner, College legal counsel or witnesses. However, it must not respond to questions regarding the merits of the complaint or standards of practice. Decisions regarding the merits of the complaint are made once all evidence has been submitted and considered by the Hearing Tribunal.
Role of Legal Counsel to the Hearing Tribunal
The Hearing Tribunal will have legal counsel present throughout the review. The role of legal counsel is to:
• provide the Hearing Tribunal with advice on issues that may arise at the hearing
• review the Hearing Tribunal’s reasons to ensure legal principles are met
• assist the Hearing Tribunal in writing the decision.
The Investigated Registered Practitioner
On being notified the complaint has been referred to hearings and in advance of the hearing, the investigated registered practitioner will be provided with:
• notice of hearing
• notice to attend as a witness
• documents relied upon in referring the matter to hearing
• names of the Hearing Tribunal members
• names of witnesses to be called
• notice of documents the College will be relying on as evidence at the hearing in accordance with the disclosure process
• hearing procedures, including advising they have the right to be represented by counsel at the hearing
• any other information required to be disclosed in advance of the hearing.
If the investigated registered practitioner fails to attend the hearing and provided the practitioner has been served notice of the hearing pursuant to Section 33(3), of the HDA, the Hearing Tribunal may:
A) proceed with the hearing in the absence of the investigated person
B) act and decide on the matter being heard in the same way as if the investigated person were in attendance.
Regardless of whether the investigated registered practitioner is represented by counsel or not, they have the right to:
• cross-examine witnesses
• call their own witnesses
• present and respond to evidence
• attend the entire proceedings whether or not s/he gives evidence.
The Complainant, if any, will be provided with a copy of the Notice of Hearing, may be called as a witness, advised they may attend the hearing and be represented by counsel at the Hearing.
College Legal Counsel
College legal counsel is a representative of the interests of the public in general, and particularly the disciplinary arm of the College. Their primary responsibility shall be to the public and not to the investigated registered practitioner. The onus of proof in a discipline hearing is on the College legal counsel who will present evidence to establish a reasonable likelihood that the alleged charges actually did occur. College legal counsel also holds a general burden of proof over all of the evidence at the hearing.
Standard of Proof
The standard of proof to be applied in cases of disciplinary charges against registered practitioners is that of a balance of probability, meaning, on review of the evidence and facts, did the alleged conduct occur to the reasonable satisfaction of the Hearing Tribunal.
Rules of Evidence
The HDA states the Hearing Tribunal is not bound by rules of law respecting evidence applicable to judicial proceedings. The Hearing Tribunal must make evidentiary rulings in the course of hearing a case. They will also have to weigh the evidence and apply the appropriate standard of proof and onus.
Once a matter has been referred to a hearing, the College will determine which witnesses are required to attend the proceedings and issue a Notice to Attend as a Witness to all relevant parties.
The investigated registered practitioner may also request the College Administration to prepare Notices to Attend and is required to provide the name of the witness, city and province of residence, date/time the witness is required to attend and any other pertinent information to be included on the Notice to Attend. The Notice to Attend is provided to the investigated registered practitioner, or their counsel, who is responsible to arrange service of the document.
Notice to Attend as a Witness
The Notice to Attend will advise the witness to attend a discipline hearing, on whose behalf they are being called (College or registered practitioner) and provide the name of the investigated registered practitioner, date, time and place at which the witness is to attend and the documents, if any, the witness is required to produce.
Witnesses At The Hearing
Witnesses are excluded from the hearing room until their turn to give evidence and are examined under oath. A member of the Hearing Tribunal will swear in the witness using the Religious or Non-Religious Oath, whichever is requested by the witness. Following the Oath, witnesses are required to state their name for the record and spell last name.
The hearing will be conducted in accordance with the HDA and follow the order found in the Discipline Hearing Guide. Pursuant to Section 34(1) of the HDA, “hearings will be open to the public unless a) the complainant requests that the hearing be held in private because of the confidential nature of the matters to be heard, or b) in the opinion of the Hearing Tribunal, the interests of any person other than the investigated person may be detrimentally affected if the hearing is not held in private.” The investigated practitioner and presenting officer are entitled to be present throughout the entire hearing whether or not the hearing is held in private.
Conclusion of the Hearing
On conclusion of the hearing, the Hearing Tribunal will meet in private to deliberate and to determine, on a balance of probabilities, if the conduct of the registered practitioner:
• is detrimental to the best interests of the public
• contravene the Health Disciplines Act or EMT Regulations
• displays a lack of knowledge, skill or judgment in their practice.
In the event the Hearing Tribunal makes a finding of professional misconduct and/or unskilled practice, pursuant to Section 44(1) of the HDA, the investigated practitioner and College will be requested to provide submissions on sanction. See Sanction Guidelines.
The complainant and the investigated registered practitioner will be provided with a copy of the Hearing Tribunal’s Decision.
Registered practitioners are required to comply with Orders of the Hearing Tribunal, and will be monitored by the Registrar or designate.