Written with the assistance of Justin Vessair, Student-at-Law, McMillan LLP

"It wounds a man less to confess that he has failed in any pursuit through idleness, neglect, the love of pleasure, etc., etc., which are his own faults, than through incapacity and unfitness, which are the faults of his nature."

Lord Melbourne

Self-regulating professions in Canada demand exacting standards of their members. The pressure to comply is significant as failure to do so can lead to disciplinary action and losing one's license to practice. What then does a professional do when they begin to question their own capacity to meet these demands due to the onset or progression of a physical or mental illness, or substance use that has gotten out of control? In such an environment, it is unsurprisingly rare to hear of individuals self-reporting mental issues, addictions or other potential issues that can give rise to incapacity. Further, professionals tend to be proud of their membership in their profession, who, like Lord Melbourne, are loathe to report their own failures and deficiencies that threaten to tear them away from their chosen pursuit. Admitting that mental illness or addiction has affected a person's ability to perform as a professional is a source of deep embarrassment; a stigma both personal and professional surrounds admissions of incapacity.

Understanding incapacity in the professions, the misguided stigma that surrounds it, and how different professions have chosen to deal with the problem, is essential in developing an informed means of protecting the profession, the public, and the individual suffering from incapacitating issues. The focus will be on Ontario professional regulators and case law, but the conclusions are largely applicable to all professional regulators in Canada.

There are generally three paths by which a regulator can deal with the failure to maintain the standards exigent on a professional: (i) discipline; (ii) incompetence; and (iii) incapacity. However, not all professions deem there to be a difference procedurally between incapacity and incompetence, and, albeit rarely, some deal with all three under the rubric of discipline. In general, issues pertaining to professional negligence are not in the jurisdiction of the regulator, although there is often overlap between professional misconduct and negligence issues – the latter being a matter to be determined by civil legal remedies by the party affected by the professional negligence. Similarly, there is often overlap between discipline issues and issues of incompetence or incapacity.

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The foregoing provides only an overview. Readers are cautioned against making any decisions based on this material alone. Rather, a qualified lawyer should be consulted.

© Copyright 2012 McMillan LLP