After an investigation, the Inquiries, Complaints and Reports Committee (ICRC) may refer a kinesiologist to the Discipline Committee if the ICRC believes that an act of professional misconduct has occurred or has reason to believe that the kinesiologist is incompetent. The Discipline Committee will then consider the allegations and decide the case. Cases that involve a high-risk to the public enter the discipline process, such as allegations of sexual abuse and fraudulent billing. Other cases posing a lower risk to the public are addressed by the ICRC through remediation. Below are definitions that help explain matters that the Discipline Committee may consider.
It is considered professional misconduct when a kinesiologist:
- commits any of the 52 acts listed in the Professional Misconduct Regulation.
- has been found to have committed an act of professional misconduct in another jurisdiction that is considered professional misconduct in Ontario.
- has been found guilty of an offence that is relevant to the member’s suitability to practise.
- sexually abuses a patient/client.
- fails to cooperate with the Quality Assurance Committee.
A kinesiologist may be incompetent if the care provided displays a lack of knowledge, skill or judgment that demonstrates they are unfit to practice or that their practice should be restricted.
The discipline process
The parties involved in a discipline proceeding are the College and the kinesiologist. The College is represented by its legal counsel (the prosecutor) and the kinesiologist is generally represented by his or her own lawyer (the defence).
The College is required to provide the kinesiologist and his or her lawyer with all relevant information obtained during the ICRC’s investigation, including written and documentary evidence that will be introduced, the identity of any expert witnesses and summaries of the evidence they will provide, and the identity of any other witnesses who will appear.
The College must disclose the information at least 10 days before the hearing. The kinesiologist must disclose any expert evidence he or she intends to introduce.
The pre-hearing conference
After a matter has been referred to the Discipline Committee, the first step is to hold a pre-hearing conference. Through informal and unrecorded discussions, an attempt is made to determine if any agreement(s) can be reached, including a settlement of the case. If a settlement can't be reached, the practical details of the hearing are planned (e.g. scheduling).
Any settlement is then presented to a panel of the Discipline Committee, often in the form of an agreed statement of fact and a joint submission on penalty. The panel makes its decision by considering the terms of the settlement and whether it will protect the public. The panel does not have to follow the recommendation made by the counsels for the College and the kinesiologist, and not all cases are settled at the pre-hearing conference.
A hearing is a formal process, much like that in a court of law, conducted by a panel of the Discipline Committee. A panel is composed of three to five members of the Discipline Committee, including at least two publicly-appointed members of the College Council. At the hearing, the panel will:
- consider the allegations, hear the evidence and determine the facts of the case;
- determine whether the evidence proves the allegations;
- determine whether the member has committed an act of professional misconduct or is incompetent; and
- determine the penalty to be imposed if there is a finding.
Hearings are open to the public unless the panel believes the public should be excluded because of security or safety concerns, or a compelling privacy interest.
Testifying at a discipline hearing
The hearing begins with the prosecutor calling evidence to establish the College's case. The prosecutor will call witnesses who have relevant information about the allegations in question and will ask each witness a series of questions. This is known as examination-in-chief. The purpose of the questions is to gather information that will be of help to the panel. The first questions identify the witness and establish his or her connection to the case. The questioning then proceeds to specific information about the incident(s) at issue in the hearing.
Once the prosecutor is finished asking questions of the witness, the defence will be given the opportunity to cross-examine the witness. The questions asked during the cross-examination might be more directive and wide ranging than those asked by the prosecutor. This is because it is the role of the defence counsel to clarify information, test the witness's memory, and see if there are any contradictions in the witness's testimony.
Once the prosecutor has completed presentation of the College's case, the defence counsel has the opportunity to present the case on behalf of the kinesiologist. The defence counsel will often call witnesses in defence of the kinesiologist, and the kinesiologist may testify on his or her own behalf. At this stage in the process, the defence counsel conducts the examinations-in-chief, while the prosecutor has an opportunity to cross-examine each of the witnesses.
After the discipline hearing
If the panel makes a finding against the kinesiologist, it will impose an appropriate penalty. The panel can order one or more of the following:
- revoke the certificate of registration for a period of up to 5 years;
- suspend the certificate of registration;
- place terms, conditions and/or limitations on the certificate of registration;
- require the kinesiologist to pay a fine up to $35,000, payable to the Minister of Finance;
- require the kinesiologist to appear before the panel to be reprimanded; and
- require the kinesiologist to pay the College's legal, investigation and hearing costs, and other expenses.
At the end of the process, the panel will issue its written decision and reasons.
The kinesiologist, or the College, may appeal the panel’s decision to the Divisional Court of Ontario.
A former kinesiologist whose certificate was revoked or suspended by a panel of the Discipline Committee may apply for reinstatement one year after the revocation or suspension. A hearing will be conducted by a panel of the Discipline Committee to consider the application. If the reinstatement application is unsuccessful, the former kinesiologist may apply again in six months.
If the revocation was ordered for a finding of sexual abuse, the former kinesiologist must wait five years before making his or her first application for reinstatement.
Publication of decisions
The College is required to publish every discipline decision and reasons on its website, in its annual report and on the Public Register of Kinesiologists. Discipline findings must be available on the Public Register for a period of at least six years; however, in many cases, the findings remain permanently. All information is published in a manner that protects the identity of any witnesses, including the original complainant.