Doodnaught not likely out of the woods if found not guilty

A not guilty verdict in the high-profile sexual assault trial of Toronto anesthesiologist George Doodnaught wouldn’t mean he is “out of the woods yet,” says Toronto health lawyer Lonny Rosen.

The criminal court system has to prove beyond a reasonable doubt that Doodnaught, facing over 20 charges of sexual assault on patients in his care, engaged in the conduct alleged and, “if he’s not guilty, the College of Physicians and Surgeons of Ontario would in all likelihood investigate and likely charge him with acts of professional misconduct under the Medicine Act and the Regulated Health Professions Act,” says Rosen, a partner in boutique health law firm Rosen Sunshine LLP.

“The college would likely still proceed and still attempt to prove, using the same witnesses from the criminal trial, that he engaged in that conduct,” says Rosen. “Even if he’s not found guilty of the conduct alleged in the criminal courts, the college might try to prove it on a lower standard of proof.”

The standard of proof at a college proceeding is different than that of the criminal court, says Rosen. “In a college matter it’s proof on a balance of probabilities. It must be found on clear, cogent and compelling evidence. The College has to prove the misconduct based on the evidence it presents.”

In finding someone guilty of criminal conduct there can be no reasonable doubt, says Rosen, however in a college hearing, a professional can be found to have engaged in the conduct “if it’s more likely than not that he did so, based on cogent and  compelling evidence.”

If found guilty by the criminal court system Doodnaught will be found to have engaged in professional misconduct automatically, says Rosen. If he is found to have engaged in sexual abuse of a patient, he will lose his licence automatically – sexual abuse of a patient carries automatic revocation of any licence held by a practicing doctor, says Rosen, for a period of five years.

And in the case if he is found guilty by the college, even if not by the court system, “In all likelihood the college would order a penalty of revocation.”

After five years, what he could then do is apply for the reinstatement of his licence, says Rosen.  The five year waiting period only applies in cases where a member’s licence is revoked due to sexual abuse of a patient and, "if a member is found to have engaged in other misconduct, or incompetence, if the licence is revoked, then they can apply to the college for the reinstatement of their licence at any time after.”

However, just because a physician seeks reinstatement, it doesn’t mean it’s automatic, says Rosen, “They have to prove that it’s in the public interest to have his licence reinstated. One of the things the Discipline Committee panel would look for is evidence that he isn’t at a risk to re-offend.”

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