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deciding on discipline
Case 1
Offence relevant to suitability
to practice
Member: David Bythell
Hearing Date: March 25, 2009
The Member notified the College
that in 2006, he was convicted of indecent
assault relating to conduct
that occurred between 1965 and
1970, before he was a member of
the College. After an investigation,
specified allegations of professional
misconduct relating to the conviction
were referred to the Discipline
Committee.
The College presented the Panel
with an Undertaking signed by the
Member, wherein he indicated his
wish to retire and resign permanently
as a member of the College. He also
undertook never again to practise
pharmacy in Ontario, never to reapply
for membership in the College,
and never to have an ownership interest
in a pharmacy. The College and
the Member jointly sought an order
staying the allegations of professional
misconduct, in light of the member’s
Undertaking. Upon reviewing
the Member’s Undertaking and hearing
submissions by the College, the
Panel ordered that the allegations of
professional misconduct be stayed for
as long as the Undertaking is in effect
and the Member complies with all its
terms and conditions.
Case 2
Failure to report finding of
professional misconduct by
another regulatory body;
disgraceful, dishonourable or
unprofessional conduct
Member: Robert Arlen Rosenberg
Hearing Date: February 17, 2009
Facts
This case addressed three allegations
of professional misconduct against
the Member arising from the revocation
of his licence to practise medicine
by the Discipline Committee of the
College of Physicians and Surgeons of
Ontario (CPSO) in connection with
the sexual abuse of, and/or sexual impropriety
with, a patient. The allegations
against the Member were that
he contravened a term, condition or
limitation on his Certificate of Registration,
and breached the regulations
under the Pharmacy Act, by failing to
provide the Registrar with details of
the CPSO’s findings of professional
misconduct. It was further alleged
that while he was a member of the
College, the Member engaged in conduct
or performed an act relevant to
the practice of pharmacy that, having
regard to all the circumstances,
would reasonably be regarded as disgraceful,
dishonourable or unprofessional
with respect to the CPSO’s
findings and the Member’s failure to
report these findings to the College.
The hearing proceeded without
the Member or his counsel in attendance.
The Panel was presented
with material that allowed the Panel
to conclude that the Member was
aware of the allegations against him
and of the hearing date, that the
Member had counsel in the period
immediately before the hearing
date, that the Member was aware
he could participate in the proceedings,
and that the Member elected
not to participate or send his counsel.
The Panel ruled that the hearing
could proceed in the Member’s absence.
The Panel assumed that had
he been present, the Member would
have pled not guilty to the allegations
against him.
The Member is an Ontario pharmacist
who, while he was also an Ontario
physician, engaged in a sexual
relationship with a patient that resulted
in his licence to practice medicine
being revoked by the Discipline
Committee of the CPSO in March,
2003, as a result of the automatic
revocation provisions of the Regulated
Health Professions Act, 1991
(“RHPA”). The Member appealed
the revocation to both the Divisional
Court and the Ontario Court of Appeal,
unsuccessfully, on the basis that
the patient was a long-time love interest
who should have qualified for a
spousal exemption.
Issues
The Panel had to consider two issues.
First, did the Member fail to report
and provide details to the College of
the revocation of his medical licence
by the CPSO, and, if so, did this constitute
an act of professional misconduct?
Second, was it disgraceful, dishonourable
or unprofessional for the
Member to have (a) engaged in sexual
abuse of a patient, as a physician,
while also a pharmacist, and to have
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