The personal, or "off-duty", conduct of health professionals is increasingly being brought to the attention of regulators and has become a frequent basis for regulatory action. In a recent decision of the Health Professions Appeal and Review Board, the Board upheld the decision of the Registration Committee of the College of Physicians and Surgeons, denying a medical student graduate, Jesse Leontowicz, a certificate of registration authorizing postgraduate education in Ontario due to his off-duty conduct.
The Saskatchewan Decision
Leontowicz was a graduate of the University of Saskatchewan College of Medicine in 2019. In 2018, while in medical school, a woman with whom Leontowicz had met for a date complained to the Regina Police Services that Leontowicz had sexually assaulted her. Although the Crown Prosecutor determined that there was no reasonable prospect of conviction and withdrew the charges, the complainant subsequently made a complaint about Leontowicz to the College of Physicians and Surgeons of Saskatchewan ("CPSS"). Notably, the complainant was unconnected to Leontowicz by work or school.
The CPSS Discipline Committee conducted a full disciplinary hearing in 2020 and found that Leontowicz had engaged in a violent, non-consensual sexual encounter with the complainant, and that Leontowicz was guilty of unbecoming, improper, unprofessional, or discreditable conduct. Leontowicz's medical license was suspended indefinitely, and he was ordered to pay costs of $96,577. Although this decision was quashed on appeal by the Court of the Queen's Bench of Saskatchewan1 ("SKQB"), the CPSS appealed the SKQB decision to the Saskatchewan Court of Appeal ("SKCA"). The SKCA allowed the CPSS's appeal, set aside the SKQB decision quashing the misconduct finding, and restored the CPSS's Discipline Committee's determination that Leontowicz was guilty of unbecoming, improper, unprofessional or discreditable conduct.
The Ontario Decision
In 2021, Leontowicz applied to the College of Physicians and Surgeons of Ontario ("CPSO") for a certificate of registration authorizing postgraduate education in Ontario, a prerequisite to completing a medical residency and becoming licensed to practice medicine. In his application, Leontowicz provided information regarding his 2018 encounter with the complainant. Leontowicz also made submissions to the CPSO to the effect that, while significant, the events in issue were not patient-related, and that he had always respected all boundaries with patients.
Prior to the SKCA decision, the CPSO Registration Committee refused to issue Leontowicz a certificate of registration. Leontowicz subsequently requested that the Health Professions Appeal and Review Board (the "Board") consider his application for registration. At this time, the Discipline Committee's decision had been overturned and there was no outstanding finding of professional misconduct.
In its decision, the Board referred to the CPSS Discipline Committee's penalty decision, which was also referenced in the CPSO Registration Committee's decision. The penalty decision stated that while the CPSS Council (the governing body of the CPSS) "understands that [Leontowicz's] misconduct did not occur in association with the practice of medicine", it was "of the unanimous opinion that sexual assault is antithetical to the practice of medicine". As such, the CPSS Council supported the findings of the CPSS Discipline Committee "as to the disreputable impact of [Leontowicz's] actions both to himself and the profession." The CPSO Registration Committee's decision noted that Leontowicz's past conduct raised serious concerns about his suitability to practice medicine in Ontario.
Ultimately, the Board concluded that Leontowicz had not demonstrated that the CPSO Registration Committee made an error in adopting the CPSS Discipline Committee's finding of professional misconduct. The Board noted that the practice of medicine is a privilege, not a right, and that the special position of trust that physicians hold in society is a relevant consideration to the registration process. Further, the Board's decision notes that Ontario jurisprudence has consistently held that off-duty conduct, such as what occurred in this case, is relevant to the practice of medicine. The Board also noted that the CPSO Registration Committee found that Leontowicz had not demonstrated extensive rehabilitative efforts or the insight, remorse and acceptance of responsibility that it hoped to see in the circumstances, and that there was no compelling information to displace the CPSO Registration Committee's conclusions in this respect.
The Board found that Leontowicz had not shown that the CPSO Registration Committee acted improperly, and that Leontowicz had not demonstrated that he met the standards and qualifications for registration in Ontario. The Board therefore refused Leontowicz's application for a certificate of registration.
Key Takeaways
Off-duty conduct has very real consequences for regulated health professionals – it is now well-established that the private lives of members of regulated professions may be relevant to and have an impact on their professional lives. Whether the conduct in question is criminal in nature, or something as seemingly innocuous as a posting on social media, it may still be subject to regulatory scrutiny and action. Regulated professionals should take care to ensure that their conduct, at all times, meets the standards of their profession.
Footnote
1 As it was then known as, at the time. The Court is now known as the Court of the King's Bench of Saskatchewan.
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