CAP Discipline? Skilled Legal Representation for Psychologists

If you are a psychologist in Alberta facing a complaint filed with the College of Alberta Psychology (“CAP”), it is natural to feel uncertain about what lies ahead. The risk of being disciplined puts your finances, reputation and practice permit on the line; the disciplinary process is intimidatingly complex and engages your rights; and you are probably uncertain about how to strategically respond and defend yourself against an allegation.

This article can be an informational starting point for you to get informed about CAP disciplinary actions. As you read on, bear in mind that it is strongly recommended that you navigate CAP regulatory challenges with skilled legal representation.

CAP Discipline Can Be Career-Threatening

CAP Discipline Is Legally Binding

Under the Alberta Health Professions Act (the “Act”) and its accompanying Psychologists Profession Regulation, the College of Alberta Psychologists is the statutory regulatory college that regulates the profession of psychology in the province. Its regulated members include psychologists and provisional psychologists in Alberta, as well as out-of-province psychologists providing telepsychology services in the province.

The Act confers on psychologists the privilege to self-regulate. Along with this privilege, CAP is also conferred with broad regulatory powers and discretion to make disciplinary orders with legally binding effects on its regulated members.

The Consequences of Being Disciplined

Upon determining that a regulated member has committed unprofessional conduct, the Hearing Tribunal of CAP may order one or more of the following against the disciplined psychologist:

• A caution or reprimand;
• Imposition of conditions and/or restrictions on their practice permit;
• Suspension of their practice permit temporarily or until certain conditions are satisfied;
• Requiring them to satisfy competence requirements;
  • They may be required to receive counselling or treatment programs, complete specific courses of study, or obtain supervised practical experience within a fixed period, during which the practice permit may be suspended.
• Cancellation of their registration and practice permit;
• Repayment of improper fees received from the complainant;
• Recovery of certain expenses incurred during the disciplinary process from the disciplined psychologist;
• A fine not exceeding $5,000 for each finding of unprofessional conduct and not exceeding $25,000 for the aggregation of all unprofessional conduct found at one hearing; and                          
• Any other order deemed appropriate for the protection of the public.

It is important to know that the list above is not close-ended, as CAP can implement somewhat novel discipline measures to protect the public. Furthermore, if disciplinary proceedings raise probable and reasonable grounds for criminal concerns, CAP is obliged to forward its written discipline decision to the Minister of Justice, thus opening up potential for further legal liabilities.

Adverse Discipline Decisions Are Profoundly Damaging

CAP discipline can have severe financial and career-threatening consequences. Even a seemingly “lesser” discipline measure can be profoundly disruptive and damaging. For example, a restriction or condition, such as receiving training programs and supervision until CAP is satisfied with a psychologist’s competence, can be exceedingly onerous and disruptive to their practice.

More crucially, discipline may result in widespread and long-lasting reputational damage. CAP has the discretion to publish any of its disciplinary decisions, and certain decisions must be published. A decision affecting a psychologist’s practice permit must be published and distributed to other relevant regulators, and findings of sexual misconduct must be published and remain indefinitely on CAP’s website.

Mitigate the Risks with Legal Representation

CAP discipline has legally binding effects and may severely impact your finances, career and reputation. When exposed to the potential of being disciplined, you should consult a lawyer to assess and mitigate the risks. Taylor Janis appreciates the importance of your career and reputation, and we are committed to providing thorough and transparent legal advice.

Complaints Are Not Uncommon

The practice of psychology is heavily regulated in Alberta, and the regulatory regime places stringent standards of licensing, ethics, professionalism and competence on psychologists.

Under the Act, unprofessional conduct is disciplinable, and it includes:

• Displaying a lack of knowledge, skill or judgment when practicing psychology;
• Contraventions of applicable enactments, code of ethics or standards of practice;
• Practicing psychology without an appropriate practice permit or registration, or in ways contravening the conditions imposed on a practice permit;
• Non-compliance with an investigatory request or disciplinary decision of CPSA; and
• Conduct that harms the integrity of the medical profession.

Hence, complaints can stem from a broad range of conduct which are not necessarily morally egregious. Moreover, conduct outside of your practice may attract discipline if it undermines the integrity of the profession.

The public places great expectations and trust in psychologists, and the therapeutic relationship between a patient and their psychologist can often be sensitive. Under the Act, any person can file a complaint, and the CAP Complaint Director can act on reasonable grounds to believe unprofessional conduct has been committed, meaning a complaint does not necessarily need to come from a patient.

Hence, it is not uncommon for a psychologist to receive a complaint filed against them. During its 2023-2024 fiscal year, CAP has received 112 complaints. Considering CAP had only 5,013 regulated members that year, it is fair to say that a psychologist should not overlook the possibility of attracting regulatory scrutiny at some point during their career, even if they have at all times acted diligently and ethically.

Preparedness Is Key

Facing regulatory scrutiny is not the end of the world. But if you are in this challenging situation, how you steer through the disciplinary process and respond to an allegation can determine the outcome, and you should engage early legal representation to minimize unnecessary risks.

Continue reading this article to get some baseline information about what to expect in terms of procedures. If you have any questions, you can contact Taylor Janis Workplace Law today to schedule a consultation with our skilled lawyers.

CAP Disciplinary Processes Are Disruptive

Navigating the complex and disruptive disciplinary procedures of CAP can be an intimidating and challenging experience. As a psychologist, you are a specialist in helping your patients deal with mental stress, but when the stress comes from a regulatory action, you should consider enlisting the help of legal professionals.

Below is some essential information about the disciplinary procedures of CAP. As you read on, bear in mind that early legal representation can be essential. Throughout the entire process, you have a duty to cooperate, but you also a need to avoid inadvertently jeopardizing your own case.

The Complaint Process

Once a disciplinary process starts, the psychologist or provisional psychologist who is the subject of the process becomes known as an “investigated person”.

The Complaints Director of CAP may only dismiss a complaint if they are satisfied that it is trivial or vexatious, or lacks factual merit. Otherwise, they must initiate an investigation unless the complaint is voluntarily resolved between the complainant and the psychologist named in the complaint (such as through an alternative complaint resolution process, more on this later).

Investigations

If the investigation becomes the next step, the investigated person will normally be notified of the particulars of the allegation.

An investigation can be highly intrusive and disruptive to a psychologist’s practice, and CAP can:

• Require an investigated person to answer questions under oath, and/or to disclose information and/or evidence relevant to the investigation. This can be enforced through court orders.
• May have an investigator enter the investigated person’s premises for practice.
• May temporarily suspend an investigated person’s practice permit or impose conditions thereon, under certain circumstances.

Upon the conclusion of the investigation, the investigated matter must be referred to the Hearing Tribunal of CAP, unless the complaint is dismissed for being trivial, vexatious or factually meritless.

At the Hearing Tribunal

A hearing by the Hearing Tribunal of CAP really heightens the stress and risks. If a matter leads to a hearing, the value of legal representation is eminently clear. Here is why:

• A hearing is a quasi-judicial and adversarial procedure:
  • Decisions are based on the relative strength of the legal and factual positions of the parties (an investigated person vs. CAP). Thus, extensive preparation and robust defence are often crucial for achieving a favourable outcome.
  • An investigated person may be compelled (i.e. legally bound) to testify under oath and be subjected to examination.
  • An investigated person has a statutory right to counsel at hearings. The strong recommendation is that you exercise it.
• There is limited time for preparation: A hearing would normally be scheduled within 90 days after a complaint has been referred to the Hearings Director, but the particulars, time and location of a hearing can have as little as 30 days’ notice.
• A hearing has profound reputational implications: a hearing is presumed to be open to the public. Hence, an investigated person’s preparedness and conduct during a hearing can have profound reputational effects.

Once a hearing is concluded, a finding of unprofessional conduct will result in binding disciplinary decisions.

The Appeals

If an investigated person has concerns about the fairness of a hearing decision, they can appeal the decision to the Council of CAP, and they can further appeal the Council’s decision to the Alberta Court of Appeal. However, it is highly preferable to engage early legal representation and attempt to achieve a favourable outcome at an early stage, because:

• The appeal proceedings are not a rehearing of the allegation of unprofessional conduct. Instead, the Council or the Court are only reviewing the fairness of the decision and its making process. Generally, appellants are not allowed to submit additional evidence to defend against the alleged professional misconduct.
• Once it has been made, it becomes a monumental task to have a decision overturned, as the appellate standards are high and courts are required to pay deferential respect to statutory regulators following the Vavilov decision of the Supreme Court of Canada.
• An appeal does not automatically suspend the enforcement of a disciplinary order. Moreover, even if an appeal is successful, the matter might be sent back to be reheard. Hence, whilst the complex and challenging appeal processes drag on, the irreversible damage may continue to occur in the background.

These again highlight the importance of early legal representation.

Voluntary/ Alternative Resolutions

There are alternative ways to resolve a complaint without going through the entire hearing process.

At any time before a complaint is referred to the Hearing Tribunal, the investigated person can voluntarily communicate with the complainant to resolve the complaint through a voluntary settlement, and CAP can recommend and mediate this process. Moreover, the investigated person can also admit to unprofessional conduct at any time before a decision is made by the Hearing Tribunal.

Ideally, these options should only be exercised with the strategic guidance of legal counsel, because:

• A settlement agreement ratified by CAP is binding and enforceable. Hence, it is necessary to comprehensively consider all factual and legal factors and ensure that all terms and conditions are fair and reasonable.
• An admission of unprofessional conduct does not necessarily put an end to the process. The Hearing Tribunal may still see a hearing as necessary to determine whether the facts admitted amount to disciplinable unprofessional conduct and what disciplinary measure is appropriate.
• Disciplinary decisions made on the basis of voluntary admission are subject to the same public disclosure requirements and policies as any other disciplinary decisions.
• An admission of unprofessional conduct will largely prevent you from appealing a decision on grounds of unreasonable factual findings.

Engage Legal Representation at the Earliest Stage

When you are undergoing or expecting a disciplinary process of CAP, you should not leave legal representation to the last minute.

The disciplinary process of CAP is a ladder of escalation, with each procedure escalating the stress, complexity, consequentialness and disruptive effects. Throughout all stages of the disciplinary process, non-compliance can result in further legal consequences, but you should also avoid legal pitfalls. Hence, you have legal counsel to assist you in navigating the procedural complexity and making informed strategic decisions.

Taylor Janis looks forward to assisting you through the challenges of disciplinary procedures. We will strive to reduce the stress and disruption by streamlining the process where possible and reasonable, as we understand the paramount importance for you to stay focused on your psychology practice.

*The procedures cited above may vary if the alleged unprofessional conduct is related to the incapacity of a regulated member, sexual misconduct, or the procurement or performance of female genital mutilation. Contact us for legal advice and more information.

Safeguarding Your Rights

Another reason for engaging legal representation early is that all disciplinary procedures of CAP engage your administrative law and common law rights, and some of these rights even have constitutional gravity.

Know Your Rights

The broad rights an investigated person has when undergoing CAP disciplinary procedures are ultimately based on the principle of natural justice and fairness, and to put it briefly, you have three major rights:

• The right to procedural fairness:
  • This is about due process. You have the right to know the allegation against you and to make a full answer and defence.
  • Some of your rights-related entitlements can be found in the Act and the CAP Bylaws, but CAP does have a degree of discretion in choosing and conducting its procedures. Infringement of this right can occur due to a lack of due process or when the due process is conducted inappropriately.
• The right to substantive fairness:
  • This means a decision and its reasoning must meet certain standards.
  • The Act provides that a final disciplinary decision made by the Council of CAP can be subject to the Alberta Court of Appeal’s appellate review, where the appellate standard for substantive fairness is “no palpable and overriding errors” in factual findings and “correctness” in application of laws.
• The right to an unbiased decision maker:
  • The decision makers at CAP should not give a reasonable apprehension of bias to a reasonably informed third person observing the entire decision-making process.
  • Reasonable apprehension of bias is a high legal threshold; it is not “any apprehension of bias” and needs to be supported with evidence.

Safeguarding Your Rights Through Early Legal Representaion:

Because your rights are embedded within the procedures, identifying infringements often requires legal expertise and keen-eyed analysis of the decision-making process. Whether it is to object to an emerging infringement or to try to correct an unfair decision through an appeal, strong legal and factual grounds are often required. As mentioned above, it is exceedingly difficult to challenge and overturn a decision after it is made, and the damage may persist as an appeal goes on.

Protecting your rights is often integral to upholding fairness, and you should safeguard your rights with the help of legal counsel by having them engaged with the entire process.

The experienced lawyers at Taylor Janis are tenacious advocates who will flag and object to rights-related issues as they emerge. Contact us today if you have any concerns about your rights and fair treatment when you are under CAP’s disciplinary scrutiny.

What Is Required to Defend against Complaints

A robust defence at a hearing is often crucial to receiving a favourable verdict, and a robust response to a complaint or investigation can result in timely resolutions. Strategically defending against a complaint can be challenging, and legal counsel can be essential for this task, as they are best equipped to research and apply the complex and nuanced rules to facts substantiated with evidence, and through tenacious and skillful advocacy to steer through regulatory challenges.

Apply the Rules

Under the Act, a broad range of conduct that contravenes applicable enactments, standards or broad ethical and professionalism requirements can attract discipline. A robust legal defence, hence, often requires extensive legal research and analysis. It is important to know that the rules governing psychologists are multi-sourced and often nuanced, and common law or other legal precedents can be highly relevant. An informed legal argument can take into account:

• Multiplicity of sources of rules:
  • The Act provides broad categories of unprofessional conduct, and more rules can be found in its accompanying regulations, the CAP Bylaws, the Standards of Practice as well as other standards applicable to CAP’s regulated members.
    • These sources contain both white-line minimum standards, as well as broad, overarching and principled ethical and professional duties. A lawyer can leverage their legal knowledge and research skills to appropriately cite and interpret these rules to support an informed argument.
• Other applicable laws, presidents and legal principles:
  • Psychologists, like everyone else, have to act legally at all times, and this means that when the legal rules other sources of law can inform a legal argument and CAP’s disciplinary decision-making process.
    • At times, a disciplinary proceeding may need to consider other legislation or common law. For example, a psychologist has a duty to keep patient information confidential, but whether the common law “danger to the public” exception applies in a certain case can be contended with support from legal precedents.

Thus, skilled legal counsel can play a crucial role in formulating a robust legal defence, which often requires extensive legal research and informed interpretation.

To the Facts

Ultimately, a disciplinary decision can only be based on facts substantiated with evidence, and a factual dispute is settled on the relative strength of competing evidence. But to support a strong factual defence with evidence is not a simple task, because:

• The Hearing Tribunal of CAP has discretion to admit evidence that would not be admissible in a judicial court. Yet, pieces of evidence are not equal in their probative value and prejudicial effects. Hence, it is advantageous for you to have a lawyer to highlight key evidence in your favour and flag and object to evidence that is irrelevant, unreliable or unduly prejudicial to you.
• The factual dispute can often be intense. Both the complainant and the investigated psychologist are entitled to submit their version of facts and support them with evidence. Skillful organization and presentation of evidence can be crucial in highlighting the factual relevance and legal materiality of your evidence.

Through Skillful Advocacy

Advocacy is a honed skill that requires tenacity and resourcefulness; it is the third component in strategically defending against a complaint. Advocacy is about presenting your positions, but also about assisting a fair decision-making process by strategically highlighting what is relevant and what is not.

Advocacy can be particularly important when there are multiple issues and factors to be considered, or when the analysis is principled. For example, the Standards of Practice require a psychologist to remain current in the knowledge, skills, diligence and judgment required to serve the public interest. But whether certain things are for or against the public interest can be contentious. Similarly, whether a psychologist has sufficient knowledge of a currently developing treatment method can also be contested. A lawyer can assist you and the adjudicator by highlighting factors that may otherwise be overlooked and thus enhancing the chance of a favourable outcome.

By obtaining legal support from Taylor Janis, you can take full advantage of our legal and practical expertise and have a tenacious and resourceful advocate on your side.

Legal Representation You Can Trust

Reliable and skilled legal representation is at the heart of protecting your reputation, practice and professional standing in a CAP regulatory action.

Our seasoned lawyers are well-equipped to provide thorough, practical, and transparent legal advice. Whether you are dealing with an investigation, hearing, or appeal, Taylor Janis has the legal and practical expertise to assist you through the process. With a proven track record of success in regulatory actions and a commitment to always providing tailored legal services, Taylor Janis understands the intricacies of the regulatory framework governing psychologists and appreciates that every case and each client’s needs are unique.

Your professional standing and reputation deserve strategic and skillful legal defence. As the first step of securing a tailored legal plan, contact one of Taylor Janis Workplace Law’s Alberta offices in Edmonton or Calgary for an initial consultation. We offer tailored legal services to professionals facing regulatory actions in all areas of Alberta.

Frequently Asked Questions

I Think CAP Has Made an Unfair Licensing Decision against Me. What Should I do?

If you have concerns about an unfair CAP decision regarding registration, reinstatement, or a practice permit application, you can apply to the College’s Council for a review. A review by the Council comes with its own procedural complexities and time limits, and how you present your case to the Council can critically impact the outcome and your ability to practice. You have a statutory right to legal representation during the review. If you think you have been treated unfairly by CAP, contact Taylor Janis Workplace Law to discuss your case.

How Long Does a CAP Complaint and Disciplinary Process Typically Take?

This could vary greatly depending on many factors, including the factual and legal merit and complexity of the complained matter. A vexatious or frivolous complaint is likely going to be dismissed fairly quickly, but a full investigation or hearing can lengthen the process to several months or well over a year. How you respond to the situation is also an important factor. A robust response from you may result in quicker resolutions, and strategic planning may prevent unnecessary procedural complexity and disruptive effects. If you have any questions or concerns about an ongoing disciplinary action, reach out to Taylor Janis for a comprehensive assessment of your case.

Can I Represent Myself During a CAP Disciplinary Proceeding?

You can represent yourself during a CAP disciplinary proceeding, but it is an unnecessary risk. You have a statutory right to be represented by counsel at a CAP hearing, and psychologists are often represented by lawyers throughout the entire disciplinary process. Having legal representation not only enhances the chance of a favourable outcome but also helps you stay informed and reduces the stress when navigating the complex procedures. Having legal representation also shows you are taking the situation seriously and may discourage vexatious or frivolous complainants. Taylor Janis’ experienced lawyers have a track record of greatly improving clients’ outcomes in regulatory actions, and you should at least have a consultation to have a lawyer assess the potential risks for you.

Will My Professional Liability Insurance Cover My Legal Fees?

Yes, liability insurance, if conformed to CAP’s requirements, must include regulatory legal defence coverage, though certain terms and conditions may apply. You should review your insurance plan with your lawyer to find out how much can be covered in your circumstances.

Can Evidence from CAP Disciplinary Proceedings Be Used in Other Legal Proceedings?

It depends. Records of each formal proceeding (e.g. a hearing) may be used in future proceedings if they are otherwise admissible under relevant evidence rules. Moreover, CAP must forward relevant information obtained through a hearing to the Minister of Justice if there are reasonable and probable grounds to believe the regulated member has committed a crime. Hence, you need to be mindful of your conduct during a proceeding, ideally with legal advice.

The alternative complaint resolution process between a regulated member and a complainant is bound by voluntary confidentiality. Hence, any record of this process (apart from a ratified settlement agreement or expert report prepared for this process) cannot be used in future legal proceedings without the parties’ consent, except that information relevant to sexual misconduct or the performance or procurement of female genital mutilation will be forwarded to law enforcement. This confidentiality could prove to be advantageous, but you should obtain legal advice for a fair and reasonable settlement.

Conclusion

CAP has statutory powers and discretion to make legally binding disciplinary decisions against psychologists in Alberta; such decisions can have severe financial, career and reputational consequences. At its extreme, a discipline can take away a psychologist’s practice permit and professional standing. Facing CAP’s regulatory scrutiny is not the end of the day, but having skilled legal representation can be essential for navigating the procedural complexity, mitigating disruption, preparing a strategically robust defence, safeguarding your rights and ultimately safeguarding your career.

References:

• Health Professions Act, RSA 2000, c H-7
• Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (CanLII), [2019] 4 SCR 653
• Psychologists Profession Regulation, Alta Reg 251/2005
• College of Alberta Psychologists Bylaws
• College of Alberta Psychologists Standards of Practice
• College of Alberta Psychologists Annual Report 2023-2024

Further Resources for Readers

• Recent disciplinary decisions of CAP
• Canadian Code of Ethics for Psychologists (Fourth Edition)

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