2007 annual conference excellent discipline outcomes: plea bargains & the public interest...

2007 Annual Conference

Excellent Discipline Outcomes: Plea Bargains &

the Public InterestModerator: Michelle Winters

Initiating the Plea Bargain Process

Bruce G. Matthews, P.Eng.

Professional Engineers Ontario

Council on Licensure, Enforcement and RegulationAtlanta, Georgia2007 Annual Conference

Overview• Semantics

• Frameworks for the Plea Bargain Process – Informal / Unstructured Frameworks– Formal / Structured Frameworks

• Implementation Considerations

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…”

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

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”

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

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”

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”

• 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”)

• Benefits– Insight into Discipline Committee perspective

• Risks and Limitations– Disclosure of strategic information by defence– Can be heavy-handed

Implementation Considerations

• Best to begin with informal / unstructured approaches

• Focus on the outcome

• Dealing with perceptions: Communications is key!

Contact InformationBruce G. Matthews, P.Eng.Manager, Complaints & DisciplineProfessional Engineers Ontario25 Sheppard Avenue West, Suite 1000Toronto, Ontario M2N 6S9T: 416-840-1076F: 416-224-9974E: bmatthews@peo.on.ca

Principles & Objectives of Discipline Sanctions

Dayna Simon, BA, LLB, MS

Royal College of Dental Surgeons of Ontario

Principles & Objectives of Discipline Sanctions

• Penalty Rationales on Sentencing

• Mitigating Factors

• Aggravating Factors

Penalty Rationales

• Principles & objectives of Sentencing at a Discipline Hearing are very similar to those at a Criminal Trial

Penalty Rationales Cont’d

Four Main Rationales/Objectives of Penalty:

• Specific Deterrence

• General Deterrence

• Rehabilitation

• Protection of the Public Interest

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

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.

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

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

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

Rehabilitation Cont’d

• Rehabilitation is increasingly becoming a more and more important aspect of penalty, as it is tied in with public interest protection

Rehabilitation Cont’d

Aspects of Rehabilitation can include:

• Remedial Courses;

• Practice Assessments;

• Practice Monitoring;

• Mentoring

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

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

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

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.

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!

Mitigating Factors may include:

• First appearance at Discipline;

• A long, unblemished professional record;

• Member new to the profession;

• Co-operation with the Investigation;

• Expressed Remorse;

• Apologized to Victim;

• Personal or Family Crisis at Time;

• Substance Addiction;

• Mental Illness;

• Self-Initiated Rehabilitation;

• Volunteer/Pro-Bono Work;

• Made Restitution;

• Member was a “dupe”;

• Guilty plea to charges;

• Participation in reaching a proposed resolution through pre-hearing

• AND THE LIST GOES ON…..(And is only limited by the lawyer’s imagination..)

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.

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;

• 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;

• Member attempted to mislead investigator or Discipline Committee;

• Destroyed or Altered documentation or evidence;

• Involved others/staff in misconduct

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

Speaker Contact InformationDayna Simon, BA, LLB, MS

Assistant to the Registrar, LegalRoyal College of Dental Surgeons of Ontario

dsimon@rcdso.org(416) 934-5618 (direct)

“Balancing the Public Interest Against Fairness to the Member and

Minimizing Costs”

Bonni Ellis, MA, JD

College of Nurses of Ontario

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

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

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?

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?

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?

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?

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 the conduct

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

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

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

Contact InformationBonni Ellis

Manager, ProsecutionsCollege of Nurses of Ontario

(416) 963-7535 – directbellis@cnomail.org

2007 annual conference excellent discipline outcomes: plea bargains & the public interest...

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