This article was written with the assistance of Justin Vessair, Student-at-Law, McMillan LLP
Part 1 - introduction
"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."
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.
(a) discipline, incompetence and incapacity
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.
Further the role of rehabilitation as opposed to "discipline", with the connotation of punitive measures, requires analysis. Bringing a professional back within defined standards, rather than making it a threat to 'get caught' outside of those standards, is a more effective means of both dealing with incapacity as well as increasing self-reporting rates. The outcome benefits individual professionals as well as the profession at large.
For example, the Health Professions Procedural Code, deemed to be part of each health professions' enabling legislation, defines incapacity as:
"incapacited" means, in relation to a member, that the member is suffering from a physical or mental condition or disorder that makes it desirable in the interest of the public that the member's certificate of registration be subject to terms, conditions or limitations, or that the member no longer be permitted to practise."1
This definition can then be compared to the Health Professions Procedural Code for incompetence, which is found beneath the sections dealing with the composition and function of a panel formed by a discipline committee:
"(1) A panel shall find a member to be incompetent if the member's professional care of a patient displayed a lack of knowledge, skill or judgment of a nature or to an extent that demonstrates that the member is unfit to continue to practice or that the member's practice should be restricted.
(2) If a panel finds a member is incompetent, it may make an order doing any one or more of the following: 1. Directing the Registrar to revoke the member's certificate of registration. 2. Directing the Registrar to suspend the member's certificate of registration. 3. Directing the Registrar to impose specified terms, conditions and limitations on the member's certificate of registration for a specified period of time or indefinite period of time."2
Revoking or limiting the professional's license for incapacity is done for the good of the public. Comparatively, the orders available for a finding of incompetence are similar to those for discipline against an individual practitioner. Regardless of the reason for the order, the potential outcomes for the disciplined professional are largely identical to that for an incompetent professional. Whether the individual's ability to function as a professional is affected by a source outside of their control or through what amounts to a form of professional misconduct, the regulator's orders end with the same result.
In comparison, the Professional Engineers Act deals with allegations of incapacity and incompetence through the same Discipline Committee, rather than attempting to construct two paths of regulating professional conduct that falls below the required standards, and effectively arrives at the same destination.3
(b) the meaning of 'incapacity'
Incapacity can stem from many sources. Substance abuse disorders, including addictions or excessive use of drugs or alcohol, are a common source. For example, addiction rates among Canadian lawyers are estimated to be between 10% to 20%.4 High levels of stress, and career related rewards for continuous performance is certainly not unique to lawyers. Such pressures can give rise to mental and emotional disorders, or be the breaking point for managing already existing conditions. Less common but just as difficult for individuals to self-report is physical, cognitive or sensory disabilities linked to health problems.
Of course, all of these sources can just as easily give rise to discipline stemming from professional misconduct (or a lawsuit arising from professional negligence), but the ideal solution is catching an incapacity problem before the public or the profession is impacted through an individual's conduct. Procedure dealing with incapacity should provide early warning to catch the types of problems and behaviours that, unchecked, can lead to damaging conduct.
(i) case law illustrating the boundaries of incapacity
The case Dr. Gregoario P. Bayang v. The College of Physicians and Surgeons of Ontario5 provides one example of a tragic outcome from a procedural failure to identify incapacity in a professional. Dr. Bayang, the appellant in the case, was an anaesthetist in Ontario. Originally from the Philippines where he received his medical degree, Dr. Bayang immigrated to the United States, where he interned between 1959 and 1962. He made his move to Canada in 1963, taking a fellowship in rehabilitation medicine at the University of Saskatchewan. His medical career from that point took him to Halifax before finally settling in Whitby as a staff anaesthetist.
Dr. Bayang was brought before the Discipline Committee of the College of Physicians and Surgeons of Ontario (the "College") on charges of misconduct and incompetence in 1990. He was 57 years old at the time, and had no previous complaints lodged against him.
The incident that led to the eventual charge involved the death of a patient who had been admitted to the Oshawa General Hospital for jaw surgery. During the course of administering anaesthetics in preparation for the surgery, she suffered cardiac arrest. Attempts to resuscitate her were not successful.
During the College's review of the incident, Dr. Bayang was unable to fully assure the reviewing panel that he had managed the situation to the level required of his profession. As the role of the College's review body is not disciplinary in nature, it recommended a neuropsychological assessment. The assessment found a general slowing of Dr. Bayang's mental abilities, such as memory, managing multiple tasks at once, problem-solving abilities, and a deterioration of his muscle coordination and speed. Simply put, he was suffering from dementia.
The College asked for, and received, an undertaking from Dr. Bayang that he would not practice medicine until the question of his mental health could be fully determined. He repeatedly broke this undertaking, for which ultimately his license was then revoked by the College's Discipline Committee.
On appeal, the Ontario Superior Court of Justice partially overturned the Committee's order. The court's reasons provide a useful analysis of the difference between incompetence and incapacity. The former "carries with it a connotation of 'mea culpa' – e.g. (i) voluntary ingestion of alcohol/drugs to a degree that renders the doctor incompetent to provide proper care to the patient, (ii) failure to 'stay current'" which leads to a deficiency in treatment."6 In fact, the discipline hearing to which Dr. Bayang was subjected was the improper legal route to deal with a failure to meet the standards required of a profession of this nature. Instead, a fitness hearing, not a disciplinary one, is the "proper legal route" for handling incapacity, along with being "the humanitarian route."7
The court admits that the result of both a discipline and a fitness hearing may end up being the same, but the end result does not affect the proper procedure a regulatory body should employ in its review.8 A fitness hearing is the proper legal route when the cause of the professional's condition "is through no fault of the [individual]."9
Unfortunately for Dr. Bayang, while the discipline based on 'incompetence' was dismissed, the revocation of his license was upheld due to his misconduct in repeatedly breaching his undertaking to stop practicing medicine. From his testimony, it is clear that Dr. Bayang, even after receiving his neurophysical diagnosis, did not believe that he was incapacitated and unable to perform his job to the standards required by his profession. He was simply unwilling to admit that fact, which is perhaps the most relatable part of the entire case for any professional, regardless of their field of practice.10
The discussion defining the envelope of incapacity continues in Mason v. Registered Nurses' Association of British Columbia.11 The decision in Mason illustrates the difference between both incapacity and incompetence when compared to negligence, an issue outside the purview of the professional regulators. Mason is found incompetent by a discipline committee resulting in a suspension of her license for an indefinite period due to numerous errors made administering medicine and record-keeping while on duty. These mistakes were compounded by her recalcitrance when confronted with the errors, which was seen by the regulatory body as indicative of the likelihood of patients being exposed to life-threatening errors in the future.
Mason then appealed to the British Columbia Superior Court. Summarizing from cases submitted to the court by the appellant, the court outlines five principles that help to define incompetence and separate it from negligence:
i. The particular definition placed upon the word 'incompetency' should be moulded by the object of the enactment in which the word appears, in this case the Registered Nurses' Act,12 as amended. In this respect, it is submitted that the statement of statutory purpose quoted from the Kansas State Board of Healing Arts v. Foote [supra] is appropriate to the statute under consideration here.13
ii. All the definitions of 'incompetency' focus on the lack of ability, capacity or fitness for a particular purpose.
iii. The want of capacity, ability or fitness may rise from a lack of physical or mental attributes. However, a person not lacking in physical or mental attributes may nonetheless be incompetent by reason of a deficiency of disposition to use his or her abilities and experience properly.
iv. Negligence and incompetence are not interchangeable terms. A competent nurse may sometimes be negligent without being incompetent. However, habitual negligence may amount to incompetence.
v. A single act of negligence unaccompanied by circumstances tending to show incompetency will not of itself amount to incompetence.14
The difference between incompetence and negligence is an important one in the development of a means of dealing with incapacity in the professions. It is distinguishable from situations where discipline is best suited to deal with a breach of standards.
The development of jurisprudence surrounding incapacity continues a couple years after Mason with Reich v. College of Physicians and Surgeons (British Columbia),15 which holds that an inquiry into incompetence is not the same as an inquiry into incapacity. At issue in the case is not the capacity to practice, or the 'fitness', of Dr. Reich, but rather his actual technical skill and knowledge.
The discipline against Dr. Reich proceeded under s.48(1) of the British Columbia Medical Practitioners Act.16 The court found s.48 to be the proper section under which to bring the hearing, and further found that the required procedural elements of the hearing had been followed. In its reasons, the court reviews the sections of the Act that outlines available methods of review:
"Under s.48 the procedure is employed to investigate the skills and knowledge of a member to practice medicine.
Under s.50 the inquiry is directed to charges or complaints made concerning the conduct, mental condition, capability or fitness to practice.
Under ss.55 and 56, action is taken on reports that a member is suffering from a physical or mental ailment, emotional disturbance, or addiction to alcohol or drugs that may constitute a danger to the public."17
This separation of proceedings, though still all grouped under discipline, shows the distinction between incapacity and incompetence. The court does admit that the distinction between an inquiry into "the capabilities or fitness to practice medicine" and the actual technical skills and knowledge "may become a very fine one at times."18 Despite the potential similarities between the two types of proceedings, the court does uphold the distinction and finds that an inquiry into Dr. Reich's technical skill was the proper procedure. More so, the court further defined incompetence by holding that there was no dispute that Dr. Reich possessed adequate skill and knowledge, but declined to use it, and so was held to "lack those skills when he comes to treat his patients."19
1. Regulated Health Professions Act, 1991, SO 1991, c 18, [RHPA] Schedule 2, "Health Professions Procedural Code" s.1 (1) "incapacitated" [HPPC].
2 Ibid at s. 52.
3 Professional Engineers Act, s.28(3)(b) definition of incapacity: "the member or holder is suffering from a physical or mental condition or disorder of a nature and extent making it desirable in the interests of the public or the member or the holder that the member of holder no longer be permitted to engage in the practice of professional engineering or that his or her practice of professional engineering be restricted." Interestingly, the PEA also takes into consideration the member's own interests as a reason to revoke or limit his or her licence.
4 Kirbyson, Geoff. "Lawyers battling addictions." The Lawyers Weekly, (April 22, 2011).
5 (1993), 63 OAC 141 (ONDivCt) [Dr. Gregorio].
6 Ibid at para 44.
7 Ibid at para 41.
9 Ibid at para 43.
10 It is worth noting that the obiter discussion of the court concerning incompetence stemming from voluntary actions, like drug and alcohol use, would likely be different if the case was decided today, when substance addiction is often treated as a disease rather than the fully voluntary choice of an individual.
11  5 WWR 509 (BCSC) [Mason].
12 R.S.B.C. 1970, Chapter 335 [RNABC].
13 The statement, cited earlier in the ruling, is: "The whole purpose and tenor of the Healing Arts Act [the title of the Kansas health statute] is the protection of the public against unprofessional, improper, unauthorized and unqualified practice of the healing arts. The goal is to secure to the people the services of competent, trustworthy practitioners. The Act seeks to do this through licensure. The licensing by the state, granted only after minimal standards of proficiency are met, amounts to the state's recognition of the licentiate as a qualified practitioner. The continued holding of the licence may be taken by the public as official indication those standards are being maintained. The object of both granting and revoking a licence is the same — to exclude the incompetent or unscrupulous from the practice of the healing arts", at para 35.
14 Mason at para 35.
15 1981 CarswellBC 674, 126 D.L.R. (3d) 559 (BCSC) [Reich].
16 S.B.C. Chapter 254.
17 Reich, supra note 15.
18 Ibid at para 8.
19 Ibid at para 13.Page 8 McMillan LLP mcmil
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