The impact of mental health on disciplinary proceedings is becoming more prominent for regulators. Two recent decisions from the British Columbia Court of Appeal indicate that while it will still be rare for a mental health condition to provide a complete defense to allegations of misconduct, Courts are showing a willingness to consider mental health in determinations of whether misconduct has occurred at all. Conversely, it has long been recognized that mental health conditions can be considered when imposing sanctions or penalties for unprofessional conduct. A recent decision from the Alberta Court of Appeal indicates that for a regulator to consider a mental health condition at the penalty phase of disciplinary proceedings, the registrant need only show that the condition at least contributed to the proven misconduct.
As stigma surrounding mental health conditions declines, their impact on disciplinary proceedings is becoming more prominent for regulators. Below, we provide a brief discussion of recent cases addressing the mental health conditions of regulated professionals in discipline hearings.
Considerations in Findings of Misconduct
It will be rare for a mental health condition to provide a complete defense to allegations of misconduct, which is consistent with the regulator's public protection mandate. However, Courts are beginning to signal a willingness to consider evidence of mental health conditions in determining whether misconduct occurred at all.
The British Columbia Court of Appeal recently stated on this issue in Gregory v. Law Society of BC. In that case, the Court of Appeal concluded that while mental health issues are typically more relevant at the penalty phase, it "would not say, categorically, that little weight is given to mental health issues at the facts and determination phase." The Court recognized that such cases would be rare, but there would be instances where mental health issues weigh heavily in determining whether misconduct actually occurred. The Court remarked that this could occur where the mental health condition could "explain" a registrant's misconduct or where, if full consideration were given to the mental health condition, the registrant's conduct would still be within professional norms.
This was in line with its decision on a similar issue, rendered just one year earlier in Ahmadian v. Law Society of British Columbia, where the Court concluded that the regulator should have considered medical evidence in determining whether the registrant was guilty of misconduct. In that case, the Court stated that if there is evidence that a mental health condition affects a registrant's mala fides (intent to commit misconduct), then that condition should be considered in determining whether misconduct occurred. The Court also stated that registrants do not need to prove that a mental health condition "truly and fundamentally renders them incapable of performing their professional obligations" for it to be considered in a finding of misconduct.
These decisions provide helpful guidance for regulators who are asked to consider a member's mental health in determining whether misconduct actually occurred. It may be an error to conclude that such medical evidence is irrelevant to the question of misconduct, but it is clear that mental health conditions will only be relevant in rare cases.
Considerations in Assessing Sanctions
Conversely, it has long been recognized that mental health conditions, such as depression, anxiety, and addiction, can be considered when imposing sanctions or penalties for unprofessional conduct. Doing so aligns with a regulator's obligation to consider the individual circumstances of the registrant when deciding on penalties. The registrant is typically responsible for raising the existence of a mental health condition.
The Alberta Court of Appeal recently provided guidance on the degree of connection needed between a mental health condition and the proven misconduct for that condition to be considered when assessing penalties. In Beaver v. Law Society of Alberta, the Court of Appeal reviewed relevant decisions on this question and the applicable statutory regime, concluding that "the proper question to ask is whether the medical diagnosis caused or contributed to the [registrant's] conduct. ... If the evidence shows that the medical diagnosis caused or contributed to the conduct, it is then the role of the [regulator] to determine its weight as a mitigating factor." Ultimately, the Court of Appeal upheld the hearing committee's conclusion that the member's medical issues did not mitigate the severity of his conduct, as the question of weight was a finding of fact containing no palpable or overriding error.
This decision is helpful for regulators presented with arguments that a mental health condition should be considered a mitigating factor in determining penalties. In assessing penalties, there is a relatively low bar: the medical evidence must show that a mental health condition at least contributed to the proven misconduct. Once that threshold is met, the decision-maker must determine the appropriate weight to place on the mental health condition as a mitigating factor, which will depend on the specific facts of each case.
Takeaways
Regulators must be aware of their obligations regarding mental health conditions in disciplinary proceedings. While it will still be rare for a mental health condition to provide a complete defense to allegations of misconduct, Courts are showing a willingness to consider mental health in determining whether misconduct occurred at all. In terms of penalties, for a regulator to consider a mental health condition at the penalty phase of disciplinary proceedings, the registrant need only show that the condition at least contributed to the proven misconduct.
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