1. 2007 Annual Conference Excellent Discipline Outcomes: Plea Bargains & the Public Interest Moderator: Michelle Winters

2. 2007 Annual Conference Initiating the Plea Bargain Process Bruce G. Matthews, P.Eng. Professional Engineers Ontario

3. Atlanta, Georgia 2007 Annual Conference Council on Licensure, Enforcement and Regulation Overview Semantics Frameworks for the Plea Bargain Process –Informal / Unstructured Frameworks –Formal / Structured Frameworks Implementation Considerations

4. Atlanta, Georgia 2007 Annual Conference Council on Licensure, Enforcement and Regulation Semantics “Plea bargain” – a dirty word? –Implies a trade-off –Perception that the public interest takes a back seat to cost savings / expediency –Perception that the registrant only wants to minimize cost and inconvenience –Perception that not all of the relevant facts will come to light –“…a deal between the lawyers…”

5. Atlanta, Georgia 2007 Annual Conference Council on Licensure, Enforcement and Regulation Semantics con’t Alternative wording: –“Agreed settlement” –“Negotiated resolution” Any process that results in some form of admission regarding the conduct in question, plus a joint submission with respect to appropriate sanctions in view of that admission

6. Atlanta, Georgia 2007 Annual Conference Council on Licensure, Enforcement and Regulation Informal / Unstructured Frameworks Open & unlimited –“Reach out and touch someone…” –“without prejudice” Policy-based approach –When to seek a negotiated resolution –Initial contact parameters –Scope of negotiations –“without prejudice”

7. Atlanta, Georgia 2007 Annual Conference Council on Licensure, Enforcement and Regulation Informal Frameworks con’t Benefits –Less structure can allow for more creative solutions –Parties have control of the process Risks and limitations –Disclosure of strategic information by defence –Consistency in approach –No guarantee re: Discipline Committee acceptance

8. Atlanta, Georgia 2007 Annual Conference Council on Licensure, Enforcement and Regulation Formal / Structured Frameworks Processes or activities involving one or more members of the Discipline Committee Processes or activities prescribed in legislation, regulations or rules Pre-hearing conference Mandatory “mediation”

9. Atlanta, Georgia 2007 Annual Conference Council on Licensure, Enforcement and Regulation Formal Frameworks con’t Pre-hearing conference –A meeting involving the parties plus one or more members of the Discipline Committee –Multiple objectives (confirm disclosure, narrow the issues, address procedural matters, assess merits and promote settlement) –Typically “without prejudice”

10. Atlanta, Georgia 2007 Annual Conference Council on Licensure, Enforcement and Regulation Formal Frameworks con’t Mandatory mediation –A process involving the parties plus a member of the Discipline Committee –Specific goal is a mutually acceptable resolution (to be ratified by a formal Discipline Panel at a hearing) –Compulsory participation (though can still be “without prejudice”)

11. Atlanta, Georgia 2007 Annual Conference Council on Licensure, Enforcement and Regulation Formal Frameworks con’t Benefits –Insight into Discipline Committee perspective Risks and Limitations –Disclosure of strategic information by defence –Can be heavy-handed

12. Atlanta, Georgia 2007 Annual Conference Council on Licensure, Enforcement and Regulation Implementation Considerations Best to begin with informal / unstructured approaches Focus on the outcome Dealing with perceptions: Communications is key!

13. Atlanta, Georgia 2007 Annual Conference Council on Licensure, Enforcement and Regulation Contact Information Bruce G. Matthews, P.Eng. Manager, Complaints & Discipline Professional Engineers Ontario 25 Sheppard Avenue West, Suite 1000 Toronto, Ontario M2N 6S9 T: 416-840-1076 F: 416-224-9974 E: bmatthews@peo.on.ca

14. 2007 Annual Conference Principles & Objectives of Discipline Sanctions Dayna Simon, BA, LLB, MS Royal College of Dental Surgeons of Ontario

15. Atlanta, Georgia 2007 Annual Conference Council on Licensure, Enforcement and Regulation Principles & Objectives of Discipline Sanctions Penalty Rationales on Sentencing Mitigating Factors Aggravating Factors

16. Atlanta, Georgia 2007 Annual Conference Council on Licensure, Enforcement and Regulation Penalty Rationales Principles & objectives of Sentencing at a Discipline Hearing are very similar to those at a Criminal Trial

17. Atlanta, Georgia 2007 Annual Conference Council on Licensure, Enforcement and Regulation Penalty Rationales Cont’d Four Main Rationales/Objectives of Penalty: Specific Deterrence General Deterrence Rehabilitation Protection of the Public Interest

18. Atlanta, Georgia 2007 Annual Conference Council on Licensure, Enforcement and Regulation Specific Deterrence Specific Deterrence means a deterrent to the member in question Sanction should be severe enough to dissuade the specific member from re- offending in the future Punishment for the sake of punishment

19. Atlanta, Georgia 2007 Annual Conference Council on Licensure, Enforcement and Regulation Specific Deterrence Cont’d Example: If the penalty for $500,000 of insurance fraud is merely a reprimand, a 1 month suspension of license and a $10,000 fine, member may not be sufficiently persuaded that the conduct should not be repeated.

20. Atlanta, Georgia 2007 Annual Conference Council on Licensure, Enforcement and Regulation

21. Atlanta, Georgia 2007 Annual Conference Council on Licensure, Enforcement and Regulation General Deterrence General Deterrence is deterrence for the membership or the profession at large One objective of sentencing is to discourage similar-minded members from committing similar acts of misconduct

22. Atlanta, Georgia 2007 Annual Conference Council on Licensure, Enforcement and Regulation General Deterrence Cont’d Example: General deterrence is accomplished not only by the severity of the penalty but also by the governing body’s ability to make the penalty known to the profession at large Often discipline case summaries are published on the governing body’s website or in its member journal or news bulletin

23. Atlanta, Georgia 2007 Annual Conference Council on Licensure, Enforcement and Regulation Rehabilitation The aim of Rehabilitation is to re-train the member so that he or she can be a more productive member of the profession and better serve his or her patients or clients Rehabilitation is intended to insure that past mistakes are not repeated in the future

24. Atlanta, Georgia 2007 Annual Conference Council on Licensure, Enforcement and Regulation Rehabilitation Cont’d Rehabilitation is increasingly becoming a more and more important aspect of penalty, as it is tied in with public interest protection

25. Atlanta, Georgia 2007 Annual Conference Council on Licensure, Enforcement and Regulation Rehabilitation Cont’d Aspects of Rehabilitation can include: Remedial Courses; Practice Assessments; Practice Monitoring; Mentoring

26. Atlanta, Georgia 2007 Annual Conference Council on Licensure, Enforcement and Regulation Protection of the Public Interest Protection of the public is the mandate of a regulatory body or agency and is the overriding principle and objective of any penalty; This awesome duty/responsibility should not and can not be taken lightly by the regulator

27. Atlanta, Georgia 2007 Annual Conference Council on Licensure, Enforcement and Regulation Protection of the Public Interest Cont’d If the public interest does not appear to be protected then public confidence in the profession and its ability to regulate itself may be called into question Example: Possibility of doctors in United Kingdom losing the right to self-regulate by 2008

28. Atlanta, Georgia 2007 Annual Conference Council on Licensure, Enforcement and Regulation Protection of the Public Interest Cont’d Regulators must be mindful that there is often media attention and public scrutiny of discipline cases and penalties Bottom Line: The public interest must be protected Sometimes public interest protection can only be accomplished by suspension or complete removal of licensure / privileges

29. Atlanta, Georgia 2007 Annual Conference Council on Licensure, Enforcement and Regulation Mitigating Factors At a Discipline Hearing, panel or committee will often be asked to consider MITIGATING factors in determining an appropriate and fair penalty Mitigating Factors do not go to the guilt or innocence of the member but rather may be a consideration on sentencing.

30. Atlanta, Georgia 2007 Annual Conference Council on Licensure, Enforcement and Regulation Mitigating Factors Cont’d Mitigating Factors should not excuse the conduct but may provide some explanation as to the circumstances that led to the conduct!

31. Atlanta, Georgia 2007 Annual Conference Council on Licensure, Enforcement and Regulation

32. Atlanta, Georgia 2007 Annual Conference Council on Licensure, Enforcement and Regulation Mitigating Factors Cont’d Mitigating Factors may include: First appearance at Discipline; A long, unblemished professional record; Member new to the profession; Co-operation with the Investigation;

33. Atlanta, Georgia 2007 Annual Conference Council on Licensure, Enforcement and Regulation Mitigating Factors Cont’d Expressed Remorse; Apologized to Victim; Personal or Family Crisis at Time; Substance Addiction;

34. Atlanta, Georgia 2007 Annual Conference Council on Licensure, Enforcement and Regulation Mitigating Factors Cont’d Mental Illness; Self-Initiated Rehabilitation; Volunteer/Pro-Bono Work; Made Restitution;

35. Atlanta, Georgia 2007 Annual Conference Council on Licensure, Enforcement and Regulation Mitigating Factors Cont’d Member was a “dupe”; Guilty plea to charges; Participation in reaching a proposed resolution through pre-hearing

36. Atlanta, Georgia 2007 Annual Conference Council on Licensure, Enforcement and Regulation Mitigating Factors Cont’d AND THE LIST GOES ON….. (And is only limited by the lawyer’s imagination..)

37. Atlanta, Georgia 2007 Annual Conference Council on Licensure, Enforcement and Regulation Aggravating Factors At a Discipline Hearing, panel or committee may also be asked to consider AGGRAVATING factors in determining an appropriate and fair penalty Like Mitigating Factors, Aggravating Factors do not go to the guilt or innocence of the member but rather may be a consideration on sentencing.

38. Atlanta, Georgia 2007 Annual Conference Council on Licensure, Enforcement and Regulation Aggravating Factors Cont’d Aggravating Factors May Include: Repeat Offender (at Discipline); Misconduct Pervasive in Practice; Conduct occurred over long time period; Conduct was Deliberate;

39. Atlanta, Georgia 2007 Annual Conference Council on Licensure, Enforcement and Regulation Aggravating Factors Cont’d Conduct continued during time member knew he/she was under investigation; Member targeted vulnerable population (i.e. young, elderly or disabled); Conduct particularly offensive/egregious; No expression of remorse or restitution;

40. Atlanta, Georgia 2007 Annual Conference Council on Licensure, Enforcement and Regulation Aggravating Factors Cont’d Member attempted to mislead investigator or Discipline Committee; Destroyed or Altered documentation or evidence; Involved others/staff in misconduct

41. Atlanta, Georgia 2007 Annual Conference Council on Licensure, Enforcement and Regulation Ultimate Objective The ultimate objective is to reach a penalty that is fair and reasonable on the individual facts of the case; Penalty should balance punishment, rehabilitation, deterrence and satisfy public interest protection

42. Atlanta, Georgia 2007 Annual Conference Council on Licensure, Enforcement and Regulation

43. Atlanta, Georgia 2007 Annual Conference Council on Licensure, Enforcement and Regulation Speaker Contact Information Dayna Simon, BA, LLB, MS Assistant to the Registrar, Legal Royal College of Dental Surgeons of Ontario dsimon@rcdso.org (416) 934-5618 (direct)

44. 2007 Annual Conference “Balancing the Public Interest Against Fairness to the Member and Minimizing Costs” Bonni Ellis, MA, JD College of Nurses of Ontario

45. Atlanta, Georgia 2007 Annual Conference Council on Licensure, Enforcement and Regulation Balancing the Public Interest Whose “interests” are affected by an adjudicative outcome? (i)individual member (ii)membership (iii) complainant/ “aggrieved” party (iv)general public (v)the administration of justice

46. Atlanta, Georgia 2007 Annual Conference Council on Licensure, Enforcement and Regulation Defining “the Public Interest” What does “the public interest” mean in the context of plea bargains? (i)outcomes that protect the public (ii)consistent/predictable results (iii) outcomes that are responsive to current trends/concerns (iv)the responsible use of available resources

47. Atlanta, Georgia 2007 Annual Conference Council on Licensure, Enforcement and Regulation Public Protection Does the proposed plea bargain protect the public? (i)What is the likely range of penalty if there are findings at a contested hearing? (ii)Does the plea bargain adequately address all facets of the conduct? (iii)Does the proposed penalty address all of the relevant principles of sentencing?

48. Atlanta, Georgia 2007 Annual Conference Council on Licensure, Enforcement and Regulation Consistent/Predictable Results Is the proposed plea bargain consistent and predictable? (i)Does the proposed penalty fall within the range of penalty ordered in similar cases? (ii)Does the proposed penalty adequately account for significant factual differences? (iii)Is the manner in which the facts are presented consistent with prior cases?

49. Atlanta, Georgia 2007 Annual Conference Council on Licensure, Enforcement and Regulation Responsive to Current Trends/Concerns Does the proposed plea bargain address current/emerging trends and concerns? (i)Is the conduct new? (ii)Does the conduct erode public confidence in the profession? (iii)Will the proposed penalty clearly communicate the regulatory body’s view of the conduct?

50. Atlanta, Georgia 2007 Annual Conference Council on Licensure, Enforcement and Regulation Responsible use of Resources How does the availability of resources impact the use of plea bargains? (i)What resources would be required for a hearing? (ii)How serious is the current matter relative to others in the discipline stream? (iii)How close is the proposed penalty to what would likely be imposed at a hearing? (iv)How strong is the evidence and what are the risks of testing that evidence at a hearing?

51. Atlanta, Georgia 2007 Annual Conference Council on Licensure, Enforcement and Regulation Fairness to the Member How can the regulating body be fair to the member when negotiating plea bargains? (i)treat all members alike (ii) ensure that the penalty reflects only theconduct admitted to and not other allegations (iii)reflect both the aggravating and the mitigating factors (iv)present reasonable settlement proposals (v)treat resolution as an ongoing responsibility (vi)provide timely disclosure

52. Atlanta, Georgia 2007 Annual Conference Council on Licensure, Enforcement and Regulation Striking the Balance How do you strike the balance in practice? (i) include the “content” of your facts as part of the negotiation process (ii) ensure that the penalty matches the admissions and the facts behind them (iii)ensure that the penalty is consistent with the relevant jurisprudence

53. Atlanta, Georgia 2007 Annual Conference Council on Licensure, Enforcement and Regulation Considerations/Suggestions Seven practical “tips” for smooth, effective and balanced plea bargaining (i) keep the complainant apprised (ii) use pre-hearings (iii) document discussions (iv) honor commitments throughout the process (v) stick to the facts (vi) avoid attachments (vii) be creative/flexible

54. Atlanta, Georgia 2007 Annual Conference Council on Licensure, Enforcement and Regulation Contact Information Bonni Ellis Manager, Prosecutions College of Nurses of Ontario (416) 963-7535 – direct bellis@cnomail.org