Board may use licensee’s sealed criminal record to impose discipline

The state medical board may use the sealed criminal record of a physician charged with misconduct to impose discipline, the Massachusetts Supreme Court ruled September 1. However, the court also ruled the contents of the sealed record could not be made publicly available, unless the board possesses independent evidence of the criminal case or criminal conduct in question and uses that evidence for a final disciplinary decision.

The case involved an unidentified physician, John Doe, who admitted to a misdemeanor charge of performing a sexual act for a fee. In June 2017, the physician admitted to sufficient facts and the court continued his case without a finding, after which the physician self-reported the arrest, charges, and disposition to the state medical board. In September 2017, Doe’s criminal case was dismissed following his completion of the court-imposed conditions, and Doe attempted to renew his license, including a copy of the criminal docket and police reports, as is required.

The board asserted that “public disclosure of the causes of a disciplinary action is important to the board’s mission of ensuring that only qualified competent physicians of good moral character are licensed to practice.”

Th court took note that the most recent statute governing the sealing of records did not prohibit their use in court proceedings before boards and commissions. That omission “makes clear that the board” may use the sealed records. But a separate law prohibits public disclosure of sealed records.

Normally the board would not have access to sealed criminal records and thus no opportunity to disclose them anyway. In Doe’s case, the question arose because Doe himself had supplied the documents, the court noted. However, it added, “because nothing in the statute requires the board to publish the basis for its final disciplinary decision, . . . the board should limit its description to that which is necessary to fulfill its mission. Indeed, the board’s executive director attested to the fact that the board has discretion regarding the nature and specificity of the information it discloses to the public.” The court remanded the case to the single justice who had first dealt with it with an order to issue a ruling consistent with the court’s decision.

The board did not know that Doe was seeking to have that record sealed by petitioning the Cambridge Division of the District Court Department. The board’s complaint committee recommended that a “statement of allegations” be served on Doe and that the board consider issuing a consent order to eliminate the need for adjudicative proceedings, as long as the consent order included a reprimand.

The draft consent order produced cited Doe’s engagement in “conduct that undermines the public confidence in the integrity of the medical profession,” and included the information contained in the sealed record. In July 2018, the criminal record was sealed and Doe notified the board of the sealing, requesting that the board close his disciplinary matter without further action since further action would violate the sealing order.

In April 2019, Doe also asked that if the board elected to discipline him, it refrain from making that discipline public until Doe could seek judicial review of the use of the sealed record. The board declined. The following month Doe filed an emergency petition to the county court.