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Decision to allow doctor to practise doesn't condone sex abuse

Toronto health lawyer Elyse Sunshine says that while the public may view as “reprehensible” the conduct of a Mississauga doctor who has been restricted to treating male patients only after he was disciplined for sexual abuse under the Regulated Health Professions Act, the decision to allow him to practise again doesn’t undermine the legislation.


“To determine the appropriateness of the penalty, we have to consider not only the conduct but also other factors such as the fact that the physician admitted to the conduct at issue and saved the witnesses from having to testify at a contested hearing, as well as the fact that the physician came forward with information the College did not have, and the fact that there are a range of penalties available to the discipline committee,” she tells AdvocateDaily.com.

“While nobody is condoning his behaviour and it is very serious, I think it has to be appreciated that the penalty that was ordered by the discipline committee is very significant. The doctor  was out of practice pursuant to a suspension for eight months and when his suspension was served, he was only permitted to return with very strict terms on his licence.”

Sunshine, partner at Rosen Sunshine LLP, explains that the discipline committee of the College of Physicians and Surgeons of Ontario has discretion in the types of penalties it can award in a case like this and that this type of conduct does not require the medical regulatory body to mandatorily revoke the physician’s licence – unlike other forms of sexual abuse, such as intercourse, that would require that type of action.

“This type of conduct does not necessitate revocation under the law so the panel has discretion to arrive at a penalty that would serve the various sentencing interests such as deterrence and rehabilitation – and that’s what they’ve tried to accomplish here,” she says. “But moreover, this penalty, which involves a prohibition from the doctor seeing female patients,  is specifically aimed at serving their mandate of public protection.”

Dr. Sastri Maharajh, 53, admitted to either placing his mouth on or resting his cheek on the breasts of up to 13 female patients between 2005 and 2011, reports the Toronto Star. He was disciplined after a College discipline committee hearing last summer, says the article. He was suspended from practising for eight months, it says.

His licence has now been reinstated and a notice saying he may treat male patients only is posted at the front desk of the Mississauga walk-in clinic where he works, says the newspaper.

As a result, some are calling into question the strength of the Regulated Health Professions Act, which has been touted as a zero tolerance law, reports The Star.

“Only sexual intercourse, various forms of contact with the genitals, the anus and the mouth, and masturbation merit a mandatory revocation of a doctor’s licence. If a doctor performs another type of sexual act, the panel can also decide to either suspend or impose specified terms, conditions and limitations on their licence,” says the newspaper.

Sunshine says the steps the College has taken doesn’t minimize in any way sexual abuse of a patient by a health professional and instead, the disciplinary actions the discipline committee has taken will serve to denounce the conduct and protect the public.

“And that’s why you see them preventing this doctor from treating women for the time being,” she says, noting the College’s decision is available publicly online.

Sunshine says that while there is the potential for the doctor to bring a proceeding forward in order to try and have the restriction altered in some way, it wouldn’t be an easy thing for him to do.

“He can bring an application to have that term varied, but in order to do so, he would have to file evidence to show that he’s not a risk to the public,” she says. “It would likely be many months before he’s in a position to make a case on such an application and there are no guarantees that such an application would be accepted.”

Sunshine says if he breaches the restriction that is currently in place, he could face further penalty and at that point the College may revoke his licence, particularly if the regulatory body determines he is ungovernable.

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