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Sexual abuse case a cautionary tale for physicians

An unusual disciplinary case against a physician shows how broadly medical regulators interpret doctor-patient relationships, Toronto health lawyer Lonny Rosen tells AdvocateDaily.com. 

In a story on the case, the Toronto Star lays out the unique fact situation that led to the regulatory proceedings for alleged sexual abuse against the Toronto doctor before a five-member panel of the discipline committee of the College of Physicians and Surgeons of Ontario (CPSO).

According to the Star, the physician had sex with a woman in the same week as he wrote her notes to get out of taking exams.

The College took the position that the doctor’s notes created a patient relationship with her, but it was having trouble getting the woman, who did not complain about the physician, to give evidence to his disciplinary hearing. Instead, it was another College member who made a report to the CPSO after learning of the situation.  

Rosen, a partner with Rosen Sunshine LLP who is not involved with the case, says the (presumably) minimal medical contact between the two main parties is a cautionary tale to physicians.  

“Writing a sick note is viewed by the College as creating a doctor-patient relationship,” he says, noting that the regulator’s position could also cause issues for physicians who write notes for friends or family members.

In addition, he says this case highlights the differences between the College’s definition of “sexual abuse” and the criminal one.  

“Most cases of sexual abuse are brought forward by the patient who was, in some way, abused, but physicians should be aware that even a 'consensual' relationship, which doesn’t result in a complaint by the person involved, will still give rise to a proceeding alleging sexual abuse where the professional relationship and sexual encounters are concurrent or within a defined period of time,” Rosen says. 

“That’s because the Regulated Health Professions Act and its Procedural Code deem any sexual encounter between a health professional and a patient (recently defined to include an individual who was the professional’s patient within one year) to be sexual abuse.”

A Star story says the CPSO’s application to the Ontario Superior Court for a bench warrant that would force the patient to testify at the hearing against her wishes has come under fire.

“The College should not be forcing the patient to testify,” Sheila Macdonald, a member of the provincial task force that recommended strengthening Ontario’s law around sexual abuse of patients, told the paper.

Rosen says the College was placed in a difficult position because allegations of professional misconduct were referred to the discipline committee despite the patient not wishing to cooperate with the prosecution.

This case arose due to the reporting requirements for all health professionals who have reasonable grounds, obtained in the course of practising the profession, to believe that a health professional has sexually abused a patient. A recent change to the law upped the maximum fine for failure to report alleged sexual abuse to $50,000, he says.

“It’s clear that the College has the power to subpoena a witness. It’s somewhat rare, but by no means unheard of, that it will subpoena a person who is alleged to have been sexually abused to testify against the doctor,” he says.

“What is rare, is that the patient is resisting this subpoena.  However, the College has acknowledged that if they did not have the power to summons the patient or if they chose not to exercise that power, then the College would be unable to prove their case.

The regulator has already applied to the Superior Court of Justice  to enforce the summons in the event that the summons is not complied with

The College discipline committee panel that heard and dismissed an application by "Patient A" to quash the summons found that “depriving the College of its ability to fully investigate and prosecute serious sex abuse allegations, based on a mandatory report from a physician, would risk rendering the mandatory reporting requirement by health care professionals toothless in eradicating sexual abuse by physicians.”

Rosen says, “In other words, the discipline committee panel found that the College’s ability to summons a patient to attend a hearing to give evidence in a sexual abuse case was a tool in its arsenal, which was to be used along with the enforcement of mandatory reporting requirements by health-care professionals to eradicate sexual abuse by health-care professionals." 

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