Alberta Social Workers: Survive ACSW Disciplinary Actions With Legal Guidance

As a social worker, you are a specialist in guiding people through life’s challenges. However, when undergoing a regulatory challenge by the Alberta College of Social Workers (the “ACSW” or the “College”), you might need some guidance from a legal professional.

A disciplinary action by the College can put your career and reputation on the line, but it is not necessarily the end of the world. It is critical that you take a proactive approach and respond in a legally informed way. This article presents some essential information that you should know if you are going through an ACSW disciplinary process or expecting a prospective one.

However, this article is for informational purposes only, and it is not a substitute for legal advice. Given that an ACSW disciplinary action may have career-altering consequences and involves complex procedures that engage your rights, you should take an active approach and seek legal counsel promptly.

Taylor Janis Workplace Law offers legal support to all professionals facing regulatory challenges across Alberta. Contact us at our Calgary or Edmonton office to schedule an initial consultation.

The Regulatory Role and Powers of the ACSW

The Regulatory Role of the ACSW

Under the Alberta Health Professions Act (the “Act”) and its accompanying Social Workers Profession Regulation, the Alberta College of Social Workers is the regulatory college for the profession of social work in Alberta, and its regulated members include social workers and clinical social workers, who have the exclusive right to use these restricted titles.

Under the Act, the ACSW has a mandate to serve and protect the public interest. It is responsible for establishing, maintaining, and enforcing the standards of registration, practice, competence, and ethics for social workers. One of the key ways the College upholds these standards is through its complaints and discipline process.

The Displinary Powers of the ACSW

The Act confers on Alberta social workers the privilege to self-regulate. Along with this privilege, the ACSW is also conferred with broad powers and discretion to make legally binding disciplinary decisions against its regulated members. Upon determining that a social worker has committed unprofessional conduct, the ACSW Hearing Tribunal may order one or more of the following:

• 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 regulated member;
• 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.

Notably, adverse disciplinary decisions can result in legal consequences beyond the sanctions listed above.

• As a regulatory college, the ACSW have a degree of discretion to appropriately “customize” somewhat novel disciplinary measures to protect the public.
• The College can also remain “seized” with a disciplinary matter, meaning it may order further discipline, commence debt actions or apply for injunctive court orders if an initial order was not complied with.
• Where a matter raises a reasonable belief that a criminal offence has been committed, the Hearing Tribunal must forward its written decision to the Minister of Justice, thus opening up a potential for further legal liabilities.

A Discipline Can Be Career-Threatening

An adverse disciplinary decision by the ACSW may cause not only severe financial and career detriments but also long-lasting and widespread reputational damage.

A severe disciplinary measure can put your professional standing and livelihood at risk. Even a seemingly “lesser” disciplinary measure, such as a requirement to complete a course of study, can be highly onerous and disruptive to your professional and personal life.

Being disciplined may also result in profound reputational damage. Under the Act, the ACSW may put disciplinary orders on public notice, and disciplinary decisions respecting sexual misconduct must be published on its website and normally remain indefinitely accessible. Moreover, information related to a disciplinary suspension, cancellation or condition imposed on a practice permit must be forwarded to out-of-province regulators for social workers, thus severely impacting the disciplined social worker’s long-term career prospects.

Assess and Mitigate the Risks with Legal Advice

ACSW disciplinary measures have legally binding effects and can cause severe financial, career and reputational damage. Regulatory actions are intricate, and the parties’ perspectives often diverge. Even a seemingly unfounded or trivial allegation can expose you to serious risks.

Hence, when facing the College’s regulatory scrutiny, you should obtain legal advice promptly to assess and mitigate potential risks.

Taylor Janis Workplace Law is committed to providing transparent legal advice. If the risk is substantial, we can provide thorough legal representation. If the risk is minimal, our advice can give you the peace of mind. If you have any questions or concerns about an impending regulatory action, contact us at our Calgary or Edmonton office today to schedule an initial consultation.

Preparing an Effective Defence

Defending against a complaint is not just about telling your perspective of the underlying facts. An effective defence often requires correctly applying legal rules to facts substantiated with strong evidence, with skillful advocacy enhancing its persuasiveness. This can be especially true if the factual and legal issues involved in a complaint are contentious.

Understanding the Legal Rules:

Under the Act, unprofessional conduct is disciplinable and captures a wide range of conduct:

• Displaying a lack of knowledge, skill or judgment when providing service;
• Contravention of applicable legislation, code of ethics or standards of practice;
• Practicing social work 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 the ACSW; and
• Conduct that harms the integrity of the profession of social work.

However, the above is not a closed-ended list of all types of conduct that may attract discipline, nor does it provide a full-pictured understanding of how disciplinary decisions are made. When formulating a legal defence, it is important to know:

• There are multiple sources of legal rules specifically applicable to ACSW members:
  • Any contravention of the Act, its accompanying regulations, the ACSW Bylaws, the ACSW Code of Ethics, or the ACSW Standards of Practice can be considered unprofessional conduct under the Act.
  • Legal expertise can be essential for referencing and correctly interpreting legal rules from all these sources.
• Legal rules are nuanced, especially when they interact with each other:
  • A social worker, like everyone else, must observe all laws. Correspondingly, the ACSW may take into consideration other sources of legal rules and principles when adjudicating a matter, especially when the issue is complicated or nuanced.
  • For example, in this recently published disciplinary decision, the ACSW Hearing Tribunal relied on common law cases to determine the appropriate sanction where the investigated social worker had admitted to wrongdoing.

Hence, legal counsel often plays an indispensable part in formulating robust legal defences, and they do this by leveraging their legal expertise to resourcefully reference and apply a wide range of legal authorities.

Forming a Strong Factual Postion

In ACSW regulatory proceedings, the perspectives of the parties often diverge, and the facts are often intensely disputed. Ultimately, a fair decision can only be made based on the relative strength of competing evidence from both parties.

Legal representation can be integral to building a robust evidentiary basis and advancing an effective factual defence. This is because:

• Pieces of evidence are not equal in their probative value, factual relevance and legal materiality.
  • Proper organization and presentation of evidence are often crucial for showcasing its strength and relevance.
  • Your legal counsel can flag problematic opposing evidence for being unreliable or irrelevant, thus enhancing the chance of a favourable outcome.
• The ACSW Hearing Tribunal has discretion to admit or exclude pieces of evidence and weigh them differently.
  • The Hearing Tribunal is not bound by the courts’ rules of evidence. It has a degree of discretion in admitting, excluding and weighing evidence, and this discretion should be exercised fairly.
  • A lawyer can not only highlight evidence that might otherwise be underconsidered, but also object to opposing evidence that is unduly prejudicial to you, thus reducing the chance of unfair fact-finding.

The Importance of Advocacy

A lawyer, as your advocate, will tenaciously examine the strengths and flaws of each argument. This can be vital to the persuasiveness of your defence.

Your legal advocate also assists the adjudicator in making a fair decision, for example:

• A skillful advocate can highlight hidden but important factors which may otherwise be overlooked.
  • This can be especially instrumental when complex or principled analysis is engaged.
  • For example, a full-pictured analysis of the entire circumstance and all legal constraints may be necessary for determining whether a social worker has been acting in accordance with the six core values under the Code of Ethics.
• A resourceful advocate can assist the decision-makers with issues that are not within their expertise.
  • Members of the Hearing Tribunal may not necessarily possess the same level of judicial training as a judge. When a legal rule or principle is at issue, legal counsel can play a crucial role in supporting their efforts to make fair decisions.
• Moreover, tenacious advocacy may be necessary to protect your administrative law rights when undergoing a regulatory action.

Taylor Janis Workplace Law Advocates for You

As a social worker dedicated to assisting your clients through life’s challenges, you should get legal assistance when facing regulatory challenges.

Taylor Janis is committed to defending our clients’ best interests in regulatory actions. Please do not hesitate to contact us if you need a skillful and tenacious advocate.

The Disciplinary Process of the ACSW

Navigating the disciplinary process of the ACSW can be an intimidating experience, as the procedures involved are highly complex, consequential and disruptive to a social worker’s professional and personal life.

Complaints

Any person can file a complaint with the ACSW against a social worker. The College can also initiate a disciplinary process on reasonable grounds as if a complaint has been received, if it believes that a regulated member has committed unprofessional conduct.

Moreover, under certain circumstances, a fellow social worker or the employer of a social worker has a positive duty to report to the College regarding their concerns about a social worker’s unprofessional conduct.

Therefore, a complaint does not necessarily need to come from a client, and it is not the only way to trigger a disciplinary process.

The ACSW Complaints Director may only dismiss a complaint if it is vexatious, frivolous or lacks factual merit. Otherwise, they must initiate an investigation or facilitate an investigation.

Investigations

An unresolved/ unresolvable complaint will result in an investigation, and the investigated social worker will normally be notified of the particulars of the allegations. During an investigation, you have a duty to cooperate, but also a need to avoid inadvertently jeopardizing your case.

An ACSW has broad investigatory powers, and they may require the investigated social worker (or be under court orders) to answer questions under oath, and/or to disclose information and/or evidence relevant to the investigation. Moreover, the investigator may also enter the investigated social worker’s premises for practice. Under certain circumstances, a social worker’s practice permit may be temporarily suspended or have conditions imposed thereon.

Hence, an investigation can be highly intrusive and disruptive to the investigated social worker’s professional and personal life.

When an investigation is eventually completed, unless the complaint is dismissed for being trivial, vexatious or factually meritless, the investigated matter will be referred to the ACSW Hearing Tribunal.

When under investigation, legal advice is strongly recommended. Legal counsel can play a vital role in helping you avoid potential legal pitfalls while remaining cooperative and in preparing a robust response that may lead to an expedited resolution.

Hearings by the Hearing Tribunal

A hearing would normally be scheduled within 90 days after a complaint has been referred to the Hearings Director. However, the notice to attend and particulars of the subject matter can be given as late as 30 days before the hearing, giving a limited time to prepare for the hearing.

A hearing is a quasi-judicial and adversarial proceeding, where both parties (the ACSW vs. the investigated persons) have a statutory right to counsel. Decisions are made based on the relative strength of the parties’ factual and legal submissions. An investigated social worker may be ordered to testify and be examined (i.e. scrutinized by questions) under oath, and a failure to cooperate may result in severe legal consequences. Hence,

Moreover, a hearing is presumed to be open to the public unless one of the limited legal exceptions requires it to be held in private in part or entirely. Hence, a hearing can have profound reputational consequences, especially if the investigated social worker is underprepared or acts in ways that prejudice themselves during a hearing.

A hearing can be a formidable challenge requiring extensive preparation, and Legal representation is often crucial to achieving a favourable outcome.

Appeals

If an investigated social worker believes a hearing decision is biased or procedurally or substantively unfair, they can appeal the decision to the ACSW Council, and they can further appeal the ACSW Council’s decision to the Alberta Court of Appeal.

However, an appeal should be seen as a last resort, and the preferred approach is to engage legal representation early and work towards a favourable outcome from the onset. This is because:

• It is a monumental task to have a disciplinary decision overturned.
  • The appellate standards are high, and courts are required to be deferential to statutory regulators following the Vavilov decision of the Supreme Court of Canada. The next section of this article will discuss the appellate standards in more depth.
• An appeal does not automatically suspend the enforcement of a disciplinary order.
  • Moreover, even if an appeal is successful, the remedy might be that the matter is sent back to be redetermined.
  • Hence, whilst you are dealing with the complex appeal procedures, the damage of an adverse decision may continue to irreversibly manifest in the background.
• The appeal proceedings are not a rehearing of the alleged facts.
  • Generally, you are not allowed to submit additional evidence to defend against the alleged professional misconduct.
  • Instead, the Council or the Court are only reviewing the fairness of the decision.

If an appeal becomes necessary, the value of legal representation is eminently clear. However, you should not leave legal advice until after a disciplinary decision is made. When facing ACSW disciplinary challenges, the preferred approach is a proactive one. You should retain legal counsel early to strive towards a favourable outcome at an earlier stage.

Voluntary/ Alternative Resolutions

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

• Before a complaint is referred to the Hearing Tribunal, the Complaints Director may refer the matter to an alternative complaint resolution process. This is a voluntary process similar to a mediation, through which the complainant and the investigated social worker can reach a voluntary settlement.
• Before the Hearing Tribunal makes a factual determination regarding the alleged unprofessional conduct, the investigated social worker may admit some or all of the allegations. If accepted, such an admission can substantially shorten the fact-finding phase of the hearing.

However, decisions regarding these should NOT be made hastily without legal advice, because:

• A settlement agreement is normally legally enforceable. Hence, you need to ensure that its terms and conditions are fair and reasonable to you, considering all relevant factual and legal factors.
• An admission of unprofessional conduct does not conclude the disciplinary process, as a hearing may be necessary to determine the appropriate disciplinary measures. The disciplinary decisions based on an admission are subject to the same public notification policy and requirements as any other disciplinary decisions.
• An admission of unprofessional conduct will largely prevent you from appealing a decision on grounds of erroneous fact-finding.

A voluntary settlement or admission may be advantageous under the right circumstances, but it is a strategic and consequential decision. Before making such a decision, you should have your lawyer comprehensively review your case first.

Engage Legal Representation Promptly

Even the early stages of an ACSW disciplinary process can be highly complex, consequential, and disruptive to your professional and personal life. Moreover, the reputational effects often start to emerge when the process commences, even before a final verdict is reached.

Throughout all stages of a disciplinary process, you need to avoid inadvertently jeopardizing your case, and you should also avoid settling a defensible case on unreasonable terms.

When you are expecting or undergoing a disciplinary process, you should engage legal representation promptly. A lawyer can provide instrumental legal support to navigate the complex procedures, make legally informed decisions and streamline the process where possible and reasonable.

The seasoned lawyers at Taylor Janis Workplace Law are not only tenacious advocates but also resourceful problem solvers. Do not hesitate to contact us if you have any concerns about an upcoming or ongoing ACSW disciplinary procedure.

*The procedures cited above may vary if the alleged unprofessional conduct is related to the incapacity of the regulated member, sexual misconduct, or the procurement or performance of female genital mutilation.

Upholding Your Rights

When undergoing a disciplinary process, your administrative law and common law rights are engaged at all stages, and some of these rights even have constitutional gravity.

Upholding your rights is often integral to achieving a fair outcome. Therefore, you should be informed of your rights and prepared to safeguard them. To that end, it is highly recommended that you obtain legal counsel early and have them engaged throughout the entire disciplinary process.

Understanding the Rights

The rights a person has when undergoing regulatory actions are ultimately based on the principles of natural justice and fairness, which can be a difficult and abstract legal concept to grasp. It is often equally difficult to apply them to the circumstances and discern whether a right is indeed infringed upon, especially without legal guidance.

However, to summarize it for informational purposes, your rights can be broken down into three broad but distinct categories:

• The right to unbiased decision makers
  • The legal standard is that decision makers should not give a reasonable apprehension of bias to a reasonable bystander observing the entire decision-making process.
  • Reasonable apprehension of bias is a high legal and factual threshold: it is not any apprehension of bias.
• The right to procedural fairness:
  • This right is about due process. At its core, this means everyone is entitled to know the particulars of the allegation against them and have appropriate opportunities to make a full answer and defence.
  • The due process can be found under the Act and the ACSW Bylaws.
  • Crucially, an infringement can take place when there is a lack of due process or when due process is conducted unfairly. Hence, spotting infringement of this right may require detailed legal knowledge and in-depth analysis of the circumstances of a decision-making process.
• The right to substantive fairness:
  • This means a decision and its factual and legal reasoning must meet certain standards.
  • The Act provides that a final disciplinary decision made by the ACSW Council can be appealed to the Alberta Court of Appeal. Hence, the standards here are “no palpable and overriding errors” in fact-finding and “correctness” in legal reasoning (Vavilov; Housen).

The applicable standards to overturn a final disciplinary decision made by the ACSW Council are the same as the appellate standards on appeal from lower courts. Moreover, courts are required to follow the common law principle of paying deference to regulatory decision makers out of respect for legislative intent.

Hence, an appeal should be considered a last resort effort to correct the wrongs already done by an infringement, and the preferred approach to safeguarding your right is to retain ongoing legal support during a disciplinary process. Having a legal counsel engaged with the entire process means they can spot, flag and object to potential infringement as they arise, which can be essential for upholding your rights and achieving a fair outcome.

Safeguarding Rights with Early and Ongoing Legal Representation

Your rights are constantly engaged when facing a disciplinary process. Once it is made, it is highly challenging to overturn a disciplinary decision through an appeal.

Hence, our strongest recommendation is that you retain legal counsel early and keep them involved throughout an ACSW disciplinary process, protecting your rights at all stages.

You can entrust Taylor Janis to safeguard your rights. Contact us today to schedule an initial consultation and secure skilled legal representation.

Engaging Legal Representation Promptly

When facing an ACSW regulatory action, legal representation can play an indispensable role in protecting your reputation, career and professional standing.

Taylor Janis is commited to providing 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 in navigating the challenging waters. 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 regulatory actions and appreciates that every case and each client’s needs are unique.

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 plans for professionals facing regulatory actions in all areas of Alberta.

Frequently Asked Questions

How Long Does a ACSW Disciplinary Process Typically Take?

The length of the process depends on many factors, including the legal and factual merits and complexity of the matter, as well as how you respond to the situation. A vexatious or frivolous complaint is likely to be dismissed fairly quickly, but if a matter leads to an investigation or hearing, it can take a few months or even over a year to resolve. A robust and legally informed response can potentially lead to an expedited resolution. If you are concerned about the disruptive effects of the process, you should consider consulting and retaining a lawyer.

Do I Need a Lawyer for Minor ACSW Complaints?

Even when a complaint is seemingly trivial or unfounded, it is still a good idea to at least talk to a lawyer first. A lawyer is equipped with the legal knowledge and research skills to assess the actual strength and gravity of a claim and can more accurately assess the potential risks. Having a lawyer on your side also shows that you are taking the situation seriously and are prepared, which may help resolve vexatious or meritless complaints early, thus minimizing the disruption and stress. If a complaint is truly unfounded, at least you get peace of mind knowing the risk is minimal after a consultation with a lawyer.

How much Does Legal Representation Cost? Will My Professional Liability Insurance Cover the Legal Fees?

Every case is different, so the total cost may vary. At Taylor Janis, we are committed to providing transparent fee structures. Depending on your case, we may be able to offer some flexibility in fee arrangements. You might have professional liability insurance personally or through our employer, but its coverage may or may not include legal fees for regulatory actions. If you are unsure about fees or the coverage, we recommend a quick initial consultation with us so we can review your case and provide an estimation.

Can I Continue Working During a Disciplinary Process?

This depends. If the ACSW did not suspend or place conditions on your practice permit, then you can continue providing social work services. However, if your permit is suspended or has conditions placed upon it, then you should strictly adhere to the College’s direction; otherwise, you are risking further legal liabilities. You can legally challenge an arbitrary or unfair decision to suspend or place conditions on your practice permit. If you are concerned about your ability to work when undergoing regulatory challenges, you should consult a lawyer.

I Think the ACSW Has Made an Unfair Licensing Decision. What Should I do?

If you have concerns about an unfair licensing decision related to registration, practice permit or reinstatement, you can apply to the ACSW Council for a review, and you have a statutory right to legal representation at the 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. If you have concerns with the fairness of a licensing decision, contact Taylor Janis Workplace Law to discuss your case.

Conclusion

AN ACSW disciplinary action can have severe and legally binding consequences, critically affecting your finances, career and reputation. Strategically defending a case often requires legal expertise and skillful advocacy. The disciplinary procedures can be intensely disruptive and complex to navigate, throughout which your legal rights are engaged. Please do not hesitate to contact us today, whether you are undergoing a disciplinary process or are expecting one. The regulatory action legal team at Taylor Janis Workplace Law looks forward to helping you through this testing time. Contact us at our Edmonton or Calgary office to schedule a consultation.

References:

• Health Professions Act, RSA 2000, c H-7
• Housen v. Nikolaisen, 2002 SCC 33 (CanLII), [2002] 2 SCR 235
• Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (CanLII), [2019] 4 SCR 653
• ACSW Code of Ethics
• ACSW Standards of Practice
• Hearing Decision Re: CF, ACSW Hearing Tribunal

Resources for Readers:

• Hearing decisions published by the ACSW
• Filing a complaint with the ACSW

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