Ontario (College of Psychologists of Ontario) v. Schnayer, 2019 ONCPD 2

Indexed as: Ontario (College of Psychologists of Ontario) v. Schnayer, 2019 ONCPD 2

The Regulated Health Professions Act, 1991, S.O. 1991, c.18

and the Psychology Act, 1991, S.O. 1991, c.38

Between:

The College of Psychologists of Ontario

and -

Dr. Reuben Schnayer

DECISION AND REASONS FOR DECISION

Panel Members:

Dr. Lynette Eulette

Chair (Professional Member of Council)

Dr. Denise Milovan

Member (Professional Member of Council)

Dr. Pamela Wilansky

Member (Professional)

Ms. Judy Cohen

Member (Public)

Mr. Emad Hussain

Member (Public)

Hearing Date:

March 22, 2019

Decision Date:

March 22 and May 29, 2019

Release of Written Reasons:

May 31, 2019

COUNSEL:

Mr. David Porter, Counsel to the College of Psychologists of Ontario

Mr. Andrew McKenna, Counsel for the Member

Mr. Ian Roland, Counsel to the Discipline Committee of the College of Psychologists of Ontario

A hearing of a panel of the Discipline Committee of the College of Psychologists of Ontario (the “Panel”) took place in Toronto on March 22, 2019. The panel of the Discipline Committee was comprised of: Dr. Lynette Eulette, Professional Member of Council (Panel Chair), Dr. Denise Milovan (Professional Member of Council), Dr. Pamela Wilansky (Professional Member of the College), Ms. Judy Cohen (Public Member of Council), Mr. Emad Hussain (Public Member of Council). The College was represented by Mr. David Porter. Dr. Schnayer was represented by Mr. Andrew McKenna. Mr. Ian Roland was present as Independent Legal Counsel for the panel.

PRELIMINARY MATTERS

Preliminary Matters

At the outset of the hearing David Porter applied, on behalf of the College, for an order pursuant to subsection 45(3) of the Health Professions Procedural Code banning the public disclosure, including banning the publication or broadcasting of the names of the children who were in therapy with Dr. Schnayer. Counsel for Dr. Schnayer did not object to the order. The Panel granted the order banning the public disclosure of these names. For this reason we have used the children’s first initial for identification and Mrs. X to identify their mother.

THE ALLEGATIONS OF MISCONDUCT

The Allegations of Misconduct

The Notice of Hearing, dated May 29, 2018, set out the allegations against Dr. Schnayer, as follows:

IT IS ALLEGED that Dr. Schnayer is guilty of professional misconduct under section 51(1)(c) of the Code, the Psychology Act, 1991, S.O. 1991, c. 38 (the "Act") and the Regulations thereto, all as amended.

THE PARTICULARS OF THE ALLEGATIONS are as follows:

You contravened a federal, provincial or territorial law, or a municipal by-law, and

i. the purpose of the law, or by-law is to protect public health, or

ii. the contravention is relevant to the member’s suitability to practice, contrary to s. 1, paragraph 32 of O. Reg. 801/93.

In particular, you contravened s. 72 of the Child and Family Services Act, R.S.O. 1990, c. C. 11, as amended, (“the Child and Family Services Act”).
You failed to maintain the standards of the procession, contrary to s. 1, paragraph 2 of O Reg 801/93. In particular, you failed to maintain Standard 2.1 of The Standards of Professional Conduct (Effective September 1, 2005, Revised March 27, 2009) (Compliance with Statutes and Regulations Relevant to the Provisions of Psychologist Services – General Conduct).

By way of further particular, it is alleged that:

(a) You provided psychologist services to three children from in or about October 2009 to December 2016:

(i) “K” (D.O.B. February 19, 1996);

(ii) “M” (D.O.B. March 24, 1998);

(iii) “G-F” (D.O.B. April 20, 2002).

(b) Between 2009 and 2016 inclusive, the three children disclosed certain information to you regarding alleged abusive conduct that created a legal duty on you to make a report or reports to a Children’s Aid Society pursuant to s. 72 of the Child and Family Services Act.

(c) You failed to make a report or reports to a Children’s Aid Society as you were required to do pursuant to s. 72 of the Child and Family Services Act.

(d) This was a contravention of your obligations under s. 72 of the Child and Family Services Act.

(e) You knew, or ought to have known, that the information reported to you over time by the three children created a duty to report under s. 72 of the Child and Family Services Act.

AGREED STATEMENT OF FACTS

Agreed Statement of Facts

The parties submitted an Agreed Statement of Facts, as follows:

Dr. Schnayer obtained his Certificate of Registration for a psychologist authorizing autonomous practice on June 5, 1987. His authorized areas of practice include clinical psychology and counselling psychology for adolescents and children.
In October 2009, Mrs. X asked Dr. Schnayer to provide therapy to her 3 daughters. The 3 children were 13, 11 and 7 years old when therapy began. Mrs. X had separated from her husband (the children’s father) in March 2009. The children’s father is a police officer.
Since October 2009, Dr. Schnayer has provided psychological services to Mrs. X’s three children, K (DOB February 19, 1996), M (DOB March 24, 1998) and G-F (DOB April 20, 2002). At the time that Dr. Schnayer started providing services to the children, the local Children’s Aid Society (“CAS”) was already involved with the family. As of October, 2009, none of the children were living with their father and only G-F had supervised contact with him. By mid-2010, G-F also ceased having contact with her father.
During the period of providing psychological services to these children, and at times when the relevant children were less than 16 years of age, the children individually and collectively disclosed information to Dr. Schnayer regarding alleged abusive conduct that created a legal obligation on him to make reports to the Children’s Aid Society pursuant to Section 72 of the Child and Family Services Act, which he never did.
In the first session with the family on October 28, 2009, M, aged 11 years 7 months, indicated to Dr. Schnayer that her father yelled and screamed at her and threatened to kill her. A few months later on January 12, 2010, Dr. Schnayer noted that “M told me that one day dad threatened to kill her + her cat”. In a June 8, 2015 note by Dr. Schnayer, M describes that when she was six years old, her father hurt her and “Dad said he will kill her if she says anything”.
G-F wrote a note on August 9, 2011 contained in Dr. Schnayer’s record, in which she stated “[dad] threatened to kill us” and “tried to hurt my sister and cat”. Dr. Schnayer’s notes on October 24, 2011 state that the girls had heard their father threatening their mother that if she left “he would take the kids away and threatened to kill mom”. On October 24, 2011, M indicated that her father had called his female friend when she was sick and told M not to tell her Mom and if she did “he would hurt them”.
On March 27, 2012 Dr. Schnayer’s notes indicate that M reported that her father had said: “If you don’t shut up I am going to shoot you in the head”. His notes state: “Apprs [appears] dad drew his gun and pointed it at [M]”. The children’s father is a police officer who therefore had access to firearms.
On May 2, 2012, M told Dr. Schnayer that her father had “made fun of M’s boobs” and would “show his friends M’s bras”. Subsequently, in January and February 2015, M provided additional details about sexual abuse indicating that her father had sexually molested her. She described being about eight years old, locked in her room with her dad in bed with her, and M telling him “at least 10 times” to stop groping and touching her and dad telling her “she wanted it”. M felt that it “happened a lot”.
On September 1, 2016, M reported that her father had said to M “I’ll shoot you you little bitch” and in another incident he was “chasing M and throwing kitchen chairs to get to M”. G-F reported that “Dad would wait until Mom not around and do things to them and said “I swear to G-D that if you tell your Mom, I’ll kill you””. On September 1, 2016 the girls stated that their father “threatened Mom all the time re: physical violence, etc.”
The file maintained by the local CAS reveals that the CAS was aware of the allegations of physical abuse and threats that had been made against the father as of July, 2009. The file maintained by the CAS shows that it was not aware of the allegations of sexual abuse that had been made against the father.
As part of its investigation, the College obtained an expert opinion from Dr. Susan Rich. Dr. Rich has had extensive experience in dealing with child welfare issues, including employment for seven years as the Clinical Coordinator of Residential Services for the Children’s Aid Society of Ottawa‑Carlton. From 1997, for approximately 20 years, Dr. Rich had a private clinical psychology practice in Ottawa in which one‑third of her practice focused on child welfare concerns including diagnostic assessment and treatment of children and youth with complex problems, parenting capacity assessments, and the treatment of children who have been abused or neglected.
Dr. Rich’s opinion is that the duty to report arises even when the child does not currently have contact with the abusive parent or caregiver. Dr. Rich notes in her opinion:

“In situations where the child is not currently having contact with the “abusive” parent or caregiver, one needs to ask, “Is it possible the child will have access in the future”. This commonly arises when parents have separated and the children are not presently seeing the “abusive” parent. However non-contact is not necessarily permanent, and may occur at some point accidently or purposely.” …

Indeed, in this case the CAS file obtained as part of the College’s investigation discloses the following in a report, dated June 22, 2010:

“In April of 2010, [the children’s father] attended the school of his children and requested that the Principal let him see them. As the Principal described, [the father] wanted to hear from the children why they did not want to see him. The children made it clear to their father that they are very angry and do not want to see him at this time. All children were very shaken up by this incident as well as [Mrs. X]. At this time, [Mrs. X] took the children to Hiatus House for a week as they stated they were “scared”.

… In May of 2010, [Mrs. X] provided information [to the CAS] that the children have all received restraining orders for their father and she was granted sole custody/no access for the time being. “

It was Dr. Rich’s opinion that Dr. Schnayer should have made a report to the CAS:

“[T]here were many times during the seven years that Dr. Schnayer worked with the [X] family when he had sufficient information to determine that a report of concern to the CAS was the correct course of action.”

Dr. Rich’s opinion, as set out above, is accepted as true by Dr. Schnayer and the College.

THE PLEA

The Plea

Dr. Schnayer admitted the allegations of professional misconduct as set out in paragraphs numbered 1-3 of the Notice of Hearing dated May 29, 2018. The Discipline Committee panel accepted the admission of professional misconduct to these allegations.

THE DECISION

The Decision

The Discipline Committee Panel concluded that on the basis of the admission of Dr. Schnayer, the Agreed Statement of Facts dated March 22, 2019, and the submissions of the parties that:

Dr. Schnayer contravened s. 72 of the Child and Family Services Act, R.S.O. 1990, c. C. 11, as amended, (“the Child and Family Services Act”). Dr. Schnayer failed to make a report or reports to a Children’s Aid Society as required to do pursuant to s. 72 of the Child and Family Services Act. This was a contravention of Dr. Schnayer’s obligations under s. 72 of the Child and Family Services Act. Further, Dr. Schnayer knew, or ought to have known, that the information report to him over time created a duty to report under s. 72 of the Child and Family Services Act.
Dr. Schnayer failed to maintain the standards of the profession, contrary to s. 1, paragraph 2 of O Reg 801/93. In particular, Dr. Schnayer failed to maintain Standard 2.1 of The Standards of Professional Conduct (Effective September 1, 2005, Revised March 27, 2009) (Compliance with Statutes and Regulations Relevant to the Provisions of Psychologist Services – General Conduct).

PENALTY

Penalty

The parties submitted a joint submission on penalty in which they agreed that the appropriate penalty with respect to the findings of professional misconduct should include:

A reprimand;
The Registrar is directed to impose the following terms and conditions on Dr. Schnayer’s certificate of registration as follows:

a. he successfully complete the BOOST course within 30 days of the penalty decision;

b. he submit a satisfactory Reflection paper, subsequent to the completion of the BOOST course to the Registrar, this should be submitted to the Registrar within 90 days of completion of the BOOST course.

The Panel accepted this joint submission. As agreed by the parties, Dr. Schnayer shall receive a reprimand and, as set out above, have terms and conditions imposed on his certificate of registration. The parties were unable to agree on a suspension of Dr. Schnayer’s certificate of registration.

Suspension of Certificate of Registration

As indicated, counsel for Dr. Schnayer and counsel for the College did not agree on a suspension as part of the penalty. Counsel for the College submitted that the Panel should impose a two month suspension of Dr. Schnayer’s certificate of registration. Counsel for Dr. Schnayer submitted that a suspension was not appropriate to the circumstances of the misconduct of his client.

Consequently, the Panel is required to decide whether or not a suspension is appropriate as part of the penalty and, if so, the length and nature of the suspension.

Counsel for Dr. Schnayer and the College presented submissions, based upon previous case law, for the Panel to assist it in its deliberations.

The Panel was not able to reach an agreement on this aspect of the penalty. A majority of the Panel members decided that Dr. Schnayer’s Certificate of Registration should be suspended for two months, the suspension to take effect after the 30 day period to appeal has expired.

A minority of the Panel members found that Dr. Schnayer should be suspended from practicing psychology for a period of one month, with this suspension itself suspended, and remitted upon Dr. Schnayer’s successful completion of the BOOST course and the submission by him of a satisfactory reflection paper, within 90 days of completion of the BOOST course. If Dr. Schnayer fails to satisfy these remedial requirements, he would be required to serve the one month suspension.

In light of the decision of the majority of the Panel members, Dr. Schnayer’s certificate of registration shall be suspended for two months, the suspension to take effect after the 30 day period to appeal has expired.

The Panel shall reconvene, following the 30 day period to appeal, on a date to be fixed by the Registrar, in order to deliver the reprimand to Dr. Schnayer.

Suspension – Majority Reasons

This case represents the first referral from the College to a Discipline Panel for “failure to report to Children’s Aid Society (“CAS” or “the Society”), as required by the s.72 of The Child and Family Services Act. R.S.O. 1990, c. C.11. The law requires and expects psychologists to report directly to the Society when they suspect that a child is in need of protection because the child has suffered or will likely suffer physical harm, or the child has been sexually molested or sexually exploited. The law also states that psychologists have an ongoing duty to report any newly acquired information or disclosures, even if they had made previous reports with respect to the same child.

Dr. Schnayer admitted that he had committed professional misconduct during the provision of psychological services to three children who, while all younger than 16 years of age, individually and collectively disclosed alleged abusive conduct by their father. These disclosures created the legal obligation on Dr. Schnayer to report each disclosure to the Society, pursuant to section 72 of the Child and Family Services Act. He failed to do so.

The Society relies upon psychologists to adhere to the reporting requirements in order to protect vulnerable children. Counsel for Dr. Schnayer and the College reached a partial Agreement on Penalty regarding a reprimand and the completion of a BOOST course. However, Dr. Schnayer and the College disagreed on the appropriateness of a two month suspension. Counsel for the College submitted that such a suspension was an appropriate penalty that is necessary in the circumstances. Counsel for Dr. Schnayer submitted that no suspension was warranted, in all the circumstances.

In reaching our decision on a suspension as part of the penalty, we carefully considered the mitigating and aggravating factors put before us during the hearing. Dr. Schnayer’s own testimony at the hearing was also carefully reviewed. We were guided by principles of specific and general deterrence, rehabilitation, and proportionality in respect of the seriousness of the misconduct.

Reflective of the need to protect the public and maintain confidence in the profession, we were assisted by some similar cases from other self-governing bodies to arrive at our decision. We reviewed a total of ten cases from a variety of Colleges, which counsel submitted were relevant. Most cases involved disclosure of ongoing issues rather than historical disclosure. In most instances, the penalty included a reprimand, additional courses and education, and some period of suspension of the member. Although the longest specified suspension was three months, other penalties included immediate suspension until such time as a remedial course was successfully completed. In a couple of cases the College member resigned.

We considered several mitigating factors. An important mitigating factor is Dr. Schnayer’s admission that his conduct was wrong. This admission avoided a lengthy and costly hearing. It also spared any potential witnesses the distress of having to testify at the hearing.

Dr. Schnayer has been a practicing psychologist in good standing with the College for the past 32 years and, while this is a partially mitigating factor, it is also apparent that, given his years of experience, he ought to have been especially mindful of the need to protect the children that he was counselling. He ought to have understood the potentially serious consequences of undermining the law enacted to safeguard vulnerable children.

In his testimony, Dr. Schnayer pointed out that, because immediate access to psychological care in his geographical area is difficult to find and most practitioners have a two to three months waiting list, this should be seen as an additional mitigating factor against a suspension.

Access to care is important. The inclusion of a suspension period, as part of the decision on penalty, may inconvenience, possibly to a significant degree, some of Dr. Schnayer’s clients. Nevertheless, this should not be treated as a mitigating factor, since all CPO members must be held to the same standards of professionalism, and the public must have confidence that members of the College adhere to the highest standards of the profession, irrespective of where they might live.

A redacted letter addressed “Dear Whomever it May Concern”, written by the children’s mother, was introduced into evidence by agreement of counsel. It addressed Dr. Schnayer’s good character and skills. The mother asserted that her children had made gains because of Dr. Schnayer’s counselling, and the children continued to see him. However, the letter did not disclose that the mother was aware of Dr. Schnayer’s admitted professional misconduct during the delivery of psychological services to her three children.

An aggravating factor was Dr. Schnayer’s persistent and self-evident lack of awareness over a period of more than 7 years that not disclosing information, pertinent to the safety and wellbeing of his clients, could have resulted in future harm. This was manifest in his repeated disregard of his professional obligations under S.72 of the Child and Family Services Act.

Dr. Schnayer’s counsel submitted that the initial failure to inform CAS was due to Dr. Schnayer’s knowledge that a file had already been opened at CAS, while his subsequent failures to report were the result of his belief that the children were not at risk of harm, since they did not live with or have contact with their father. However, there is no ambiguity with the obligation to report to the Society. Subsection 72(3) provides:

72(3) A person who has a duty to report under subsection (1) or (2) shall make the report directly to the society, a person who has the duty to report under subsection (1.1) shall make the report directly to any organization, agency or person designated by regulation to receive such reports, and such persons shall not rely on any other person to report on their behalf.

The law is also unambiguous on the subject of the ongoing duty to report, as set out in subsection 72(2) which requires a person with additional reasonable grounds to suspect one of the matters set out in subsection (1), to further report under subsection (1), even if he or she has made previous reports with respect to the same child.

Even if the original reporting oversight could be characterized as inadvertent and careless, it was not simply “historic”. At the outset of psychological services, the youngest child was still having supervised visits with her father (a police officer) and was thus in potential danger, given the background of the family dynamics.

According to the Dr. Susan Rich, the College expert, the duty to report arises even when the child does not currently have contact with the abusive parent or caregiver.

At paragraph 12 of the Agreed Statement of Facts, Dr. Rich’s opinion is set out as follows:

At paragraph 14 of the Agreed Statement of Facts, Dr. Rich’s opinion on why Dr. Schnayer should have made a report to the CAS is set out:

In fact, all 3 children, as well as their mother, had to leave their home for a full week following a confrontation provoked by an unpredicted and disturbing encounter between the children and their father after he showed up unexpectedly at their school.

Only after this school incident did the children receive restraining orders against their father, and the mother was granted sole custody. Despite the contemporaneous and confirmed actual harm (i.e., all 3 children underwent stress and trauma and were reported to be “very shaken up by this incident as well as [Mrs. X]” and they all had to leave their home), Dr. Schnayer still did not act on his mandatory duty to report to the Society.

Although “historical” information had been reported to the Society, Dr. Schnayer knew or should have realized the potential risks for harm, because of the specific details documented in his records. The Agreed Statement of Facts details more than ten instances, spanning approximately 7 years, during which Dr. Schnayer’s clients described the significant harm or threats of harm they had experienced. In each instance, Dr. Schnayer failed to report to the Society.

Although the CAS file included information regarding allegations of physical abuse and threats, the file did not document allegations of sexual abuse made against the father when Dr. Schnayer was told of such allegations. Dr. Schnayer asserted that there was no need to report to the CAS, since he already knew that the Society had opened a file and was involved with the family.

However, the evidence shows that Dr. Schnayer possessed critical information that the Society did not possess. As set out in paragraph 10 of the Agreed Statement of Facts, “The file maintained by the CAS showed that it was not aware of the allegations of sexual abuse that have been made against the father”.

We are troubled by the assertion on Dr. Schnayer’s behalf that not reporting allegations of child abuse was not serious misconduct because there was no indication of current or potential harm. Reporting to CAS is both an immediate, as well as a preventative measure. Dr. Schnayer did not act in response to his knowledge of past abusive conduct by the father (a police officer) of his clients, including gun intimidation, verbal threats to kill them and their pet cat, and their mother, or to report an alleged sexual incident of sexual molestation. Dr. Schnayer’s failure to meet his professional duties to report deprived his clients of any additional protective and proactive steps that CAS could have taken. As the Agreed Statement of Facts makes clear, Dr. Schnayer accepted the expert opinion of Dr. Rich that, “… non-contact is not necessarily permanent, and may occur at some point accidentally or purposely.”

Whether allegations of abuse are historic or contemporaneous in nature, the failure to comply with the law by reporting allegations of physical harm, threats of deadly harm, and sexual and emotional abuse, represents a serious breach of the duty of the members of the College. A suspension of two months is appropriate in this case because of the egregious nature of the misconduct. Despite the shocking nature of the allegations made multiple times during counselling sessions over a period of more than 7 years by all three of his clients, Dr. Schnayer failed to comply with his obligation under s. 72 of the Child and Family Services Act. The decision to suspend Dr. Schnayer’s certificate of registration for a two month period is intended to ensure that he is fully cognizant of the gravity of his misconduct, as well as to ensure that no other members of the profession will fail their mandatory reporting responsibilities. This decision also reflects the potential danger to the reputation of the profession created by Dr. Schnayer’s misconduct.

In summary, a two month suspension reflects the seriousness of the misconduct. It sends a clear message that such a serious breach of professional obligations cannot and will not be tolerated. This suspension reminds members of the profession of the importance of recognizing the potential harm of not reporting and the need to adhere to the reporting requirements of s.72 of the Child and Family Services Act. Further, the suspension should act as a sufficient general deterrent for other professional members who may not be reporting, as required, and makes it clear that the College does not tolerate this kind of misconduct. Finally, this suspension maintains the confidence of the public that information, as required by statute, will be brought to the attention of CAS. The public should remain confident in the profession’s ability to regulate and discipline itself.

“Denise Milovan”

Dr. Denise Milovan, C.Psych.

“Judy Cohen”

Ms. Judy Cohen (Public Member)

“Emad Hussain”

Mr. Emad Hussain (Public Member)

Dated May 29, 2019

Suspension – Minority Reasons

We carefully considered the mitigating and aggravating factors in its deliberation about the issue of suspension. We considered Dr. Schnayer’s testimony at the hearing, a letter written by the mother that was entered into the record at the hearing, the Agreed Statement of Facts, and similar cases from other regulatory bodies that were presented by the counsel for the College and Dr. Schnayer’s counsel.

Dr. Schnayer testified at the hearing that he has reviewed his practices and, as a result, he has implemented consultation with a colleague in cases where the CAS is involved or where there is a mandatory reporting aspect to the case. These actions attest to his motivation to practice in a manner that is consistent with the law and to his recognition that he may need mechanisms in place to ensure that he does so. Dr. Schnayer’s proactive actions in this regard are a mitigating factor when considering a suspension as part of the penalty, as they speak to his recognition of his misconduct and indicate that he is working to ensure public safety in his practice of psychology. In so doing, these actions promote the rehabilitation and education of Dr. Schnayer.

Significant mitigating factors are that CAS was involved with the family from the time Dr. Schnayer was involved with the children, and that the father did not have access to the two older children and had supervised access only to the youngest child. Moreover, within a year all three children had restraining orders against their father. Given these factors, we considered that the children were not at a higher risk of harm from their father, as a result of Dr. Schnayer’s failure to report. Indeed, at the hearing there was no evidence presented that any harm came to the children as a result of Dr. Schnayer’s failure to report. It was presented that Dr. Schnayer helped the children to graduate from university and explore healthy interpersonal relationships.

Another important mitigating factor involves the letter from the mother. Both counsel for the member and for the College agreed to having the letter entered as evidence at the hearing with parts of the letter considered irrelevant being redacted. The letter provides evidence that Dr. Schnayer continues to have a therapeutic relationship with the daughters that has been important for them, as perceived by the children’s mother. This evidence of an ongoing therapeutic relationship with the children indicates that Dr. Schnayer’s misconduct did not result in the termination of treatment for the children and, as such, is a mitigating factor when considering a suspension as part of the penalty.

Other mitigating factors, when considering a suspension as part of the penalty, include Dr. Schnayer’s admission of misconduct and his cooperation with the discipline process. This avoided a lengthy and costly hearing and spared any potential witnesses the distress of having to testify. Further, Dr. Schnayer has been a practicing psychologist in good standing with the College for the past 32 years.

An aggravating factor is that Dr. Schnayer failed to report numerous instances of various types of alleged physical abuse over a period of seven years, where a report was required under s. 72 of the Child and Family Services Act. Most concerning is Dr. Schnayer’s neglect in reporting the allegation of sexual abuse made by one of the children, as this type of abuse was not in the CAS record. Dr. Schnayer’s pattern of neglect in reporting, and his lack of report of the alleged sexual abuse, highlights his need for education and rehabilitation. This is a critical aspect, in that it speaks directly to the need to ensure public protection in Dr. Schnayer’s professional practice. Most importantly, this need is addressed in the penalty requirements that have been agreed to, namely, a course of study within 30 days of the hearing decision, and a written essay reflecting on what he has learned. Any suspension as part of the penalty is irrelevant to the need for rehabilitation and education for the purposes of ensuring public safety.

This is the first case referred to the Discipline Panel of the College of Psychologists of Ontario for ‘failure to report’ to Children’s Aid Society, as required by the s. 72 of the Child and Family Services Act. As such, it will set a precedent with regards to the penalty associated with ‘failure to report’. In deciding whether and the extent to which a suspension should be part of the penalty, it is helpful to review similar cases to understand the range of penalty, including suspension, and to consider where this case may fall within that range. A total of ten cases involving ‘failure to report’ adjudicated by regulatory bodies were provided to the panel members by the counsel for the College and the member, though we considered only seven cases as relevant with regards to the issue of suspension. The range of penalty across these cases is from no suspension to a three-month suspension.

As set out in the Agreed Statement of Facts, the local CAS was already involved with the family at the time that Dr. Schnayer started providing services to the children. Also, none of the children were living with their father, although one of the daughters had contact with him via supervised visits. After about a year, this daughter also ceased to have contact with her father, and each of the children had a restraining order against their father. From the beginning of his relationship with the children, Dr. Schnayer failed to report to CAS when they disclosed information about alleged abuse that had occurred in the past. At the time of the reports from the children they were not in a harmful or injurious environment. CAS was already involved and there were restraining orders against the father.

We found several of the ‘failure to report’ cases presented to us to be dissimilar to the present case, because the child’s report of alleged abuse in those cases was current with the alleged abuse. Those cases involved considerably more potential harm to the children, since the children remained in the environment where the alleged abuse had occurred and could occur again. In one of those cases suspension was for five days only. In the other cases, a suspension was not given as part of the penalty orders, although there was a de facto suspension since the member was prevented from working for a period of time due to different parts of the penalty or due to other circumstances. If one uses all those cases as guidance, Dr. Schnayer’s penalty should be somewhat less severe, given that these cases involved children remaining in a potentially harmful or injurious environment.

Two more recent cases that concerned ‘failure to report’ had a substantial suspension as part of the penalty. These two cases involved the College of Social Workers. Since they are more recent and they involve a profession that is akin to psychology, they are particularly relevant.

In one case (College of Social Workers v Burkart, 2018) the report of alleged abuse was current with the alleged abuse, and there were important aggravating factors. The non-report left other vulnerable children at risk in a potentially harmful and injurious environment, and it did not allow hospital staff to give appropriate care to the reporting child. Moreover, CAS was not involved. The penalty included a three month suspension. The non-report in this situation was more egregious than that of Dr. Schnayer, since it resulted not only in the child not receiving appropriate care but also it placed other children at risk. By comparison, Dr. Schnayer’s penalty should be less severe than the penalty imposed in that case.

In a second case (College of Social Workers v Carere, 2015) the report of alleged abuse was historical in nature, but the child remained in the home of the perpetrator, such that there was current risk to the child. In addition, CAS was not involved. The penalty order included a three month suspension with one month remitted if the member complied with the remedial aspects of the order. Given that the child remained in the abusive environment and CAS was not involved, the non-report in that case was more egregious than that of Dr. Schnayer, since it placed the child at more potential harm than in the current case. By comparison, Dr. Schnayer’s penalty should be less severe than imposed for that case.

In summary, our review of relevant and recent cases shows that suspension was part of the penalty when children continued to be in a potentially harmful or injurious environment and, sometimes, where CAS was not currently involved. In this case CAS was already involved, supervised visits were in place, and restraining orders against the alleged abuser had been obtained. As such, the children were not in a potentially harmful or injurious environment when Dr. Schnayer was required to report.

However, Dr. Schnayer failed to report various instances of alleged abuse over a period of 7 years, and he failed to report alleged sexual abuse that was not recorded in the CAS file. Dr. Schnayer’s non-report must be addressed to emphasize the serious nature of his ‘failure to report’.

For this reason, and taking into consideration the mitigating factors, we find that a suspension of one month, with it being itself suspended, and remitted upon compliance with the balance of the penalty order, to be warranted, fair, and appropriate. We do not believe that a 2 month suspension is appropriate in light of all of the facts and circumstances.

Generally, the penalty must be proportional to the seriousness of the conduct of the member. It must address ongoing public protection, provide both specific and general deterrence, and promote the rehabilitation of the member. In the past, ‘failure to report’ incidents have been dealt with at the level of the Inquiries, Complaints and Report Committee (ICRC). By referring this case to the Discipline Committee, the ICRC treated Dr. Schnayer’s misconduct as sufficiently serious to warrant discipline.

The ensuing public reprimand serves as a specific, personal deterrent for Dr. Schnayer and as a general deterrent for the membership of the College at large. The requirement for the BOOST course and the Reflection paper, together with Dr. Schnayer’s proactive actions to review his practice and to consult with others, when a reporting requirement is part of the case, address the necessary education and rehabilitation to ensure public protection. Finally, including a one month suspension with it remitted, upon Dr. Schnayer’s compliance with the remediation feature of the penalty, balances the seriousness of the misconduct and the mitigating and aggravating factors. Such a suspension provides both a specific and personal deterrent for Dr. Schnayer and a general deterrent for the membership of the College at large. It also communicates to the public and the membership that the College takes ‘failure to report’ seriously, which will engender and maintain public trust in the profession of psychology.

“Lynette Eulette”

(Chair) Dr. Lynette Eulette, C.Psych.

“Pamela Wilansky”

Dr. Pamela Wilansky, C.Psych.

Dated May 29, 2019.