Dialogue Volume 12 Issue 3 2016 - Page 45

discipline summaries she never did. She did not disclose what had occurred for many years until, in 2008, she happened to see Dr. Noriega’s name on television in relation to another matter. She felt an immediate emotional reaction on seeing his name, spoke to her husband about what had occurred many years before, and then contacted the police. The professional misconduct in this case occurred 36 years ago. The legislation governing these proceedings is therefore different than if the misconduct had occurred more recently. Specifically, the Health Disciplines Act of 1974 applies, and not the current Regulated Health Professions Act, 1991. Under the Health Disciplines Act, Dr. Noriega has been found to have committed two acts of professional misconduct: sexual impropriety; and conduct relevant to the practice of medicine that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional. Under the Health Disciplines Act, the Committee has a wide range of discretion to exercise in imposing the penalty. The Committee may revoke the certificate of registration of the member, but revocation is not mandatory under this legislation, even for cases that would now be described as the sexual abuse of a patient under the RHPA where it is now mandatory. The Committee also has the power to impose other sanctions on the member, including suspension of the certificate of registration, the imposition of restrictions on the certificate of registration, a reprimand, and the imposition of a fine up to a maximum of $5,000. Reasons for Penalty The Committee found that in the circumstances of this case there is no penalty short of revocation that would adequately address the objectives of penalty. The principle of proportionality, and the crucial issues of protection of the public and maintenance of public confidence in the ability of the profession to govern itself in the public interest, compel the conclusion that Dr. Noriega’s certificate of registration must be revoked. The Discipline Committee has made two prior findings of professional misconduct by Dr. Noriega. These findings relate to conduct that took place subsequent to the conduct that was the subject matter of the finding in this case. Accordingly, they cannot be and were not used by the Committee as “prior findings” that justify a heavier penalty than the November 3, 2014 finding would otherwise warrant. Subsequent misconduct can be looked to for the purpose of ascertaining the member’s prospects for rehabilitation. It was for this purpose they were considered. Both counsel for the College and counsel for Dr. Noriega were in agreement that Dr. Noriega’s subsequent misconduct is not an aggravating factor with respect to penalty in relation to Ms X. The subsequent misconduct, however, is r elevant for other reasons. Firstly, Dr. Noriega was found to have sexually abused another adolescent female, Ms Q, 23 years after he had committed sexual impropriety with Ms X. The actual behaviour, in each instance, was strikingly similar. A pattern of deviant conduct is therefore established; Dr. Noriega’s behaviour with Ms X is now known not to have been an isolated incident. The Committee finds that this tends to negate any mitigating aspects which might be suggested based on the elapsed 36 years since the initial misconduct occurred. The passage of time evidently did not assist Dr. Noriega in developing insight into his deviant behaviour, accepting responsibility for it, or in being able to refrain from doing it again. Secondly, Dr. Noriega’s failure to abide by the conditions of the undertaking he entered into with the College on July 22, 2009, and his subsequent misleading of the College Investigator with respect to this, raises very serious concerns for this Committee. The conditions of the undertaking had been crafted in order to protect the public while the allegations which led to the current proceeding were being investigated. Dr. Noriega presumably understood the rationale for these conditions, and the importance of the issues at stake. Yet, he failed to ensure that his practice monitor was present with him in the examination room, and he failed to post the required signs informing his patients and their families of the restrictions on his practice. Later, he misled the College Investigator during the course of her investigation. The Discipline Committee at that time found that Dr. Noriega had demonstrated a flagrant disregard for the terms of the undertaking. Full decisions are available online at www.cpso.on.ca. Select Doctor Search and enter the doctor’s name. Issue 3, 2016 Dialogue 45