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