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Mandatory licence revocation could prove unjust in some cases

Legislative changes that treat and define consensual and non-consensual touching of a sexual nature by a doctor as equal acts of 'sexual abuse' could lead to injustice in some cases, Toronto civil litigator Richard Shekter tells Law Times TV.

As the broadcast explains, the Ontario government recently announced changes that add more sexual abuse offences to an existing list that would result in mandatory medical licence revocation for doctors and other health-care professionals.

Sexual abuse within the health-care professions is considered an act of professional misconduct and includes acts of sexual touching, comments of a sexual nature and intercourse.

“The definition of abuse under the Health Professions Procedural Code includes consensual and non-consensual conduct. It’s irrelevant, for the purposes of mandatory revocation, whether the patient consented to [it] or not,” says Shekter, partner with Shekter Dychtenberg LLP.

“The fact that this legislation treats consensual touching and non-consensual touching of a sexual nature as equal acts of abuse highlights the problem that I have with the legislation,” he adds.

“I’m not opposed to cases of revocation in the context of sexual abuse without a lack of theoretical consent, provided that the [discipline] panel has some discretion to decide who loses their licence and who doesn’t. And today, they don’t have that ability and it results in injustice in some cases.”

According to Shekter, the College of Physicians and Surgeons of Ontario is experiencing a higher number of complaints involving sexual abuse than it did a decade ago.

“What I used to say to my physician clients is that if you were ever going to be a 'bad' doctor, it’s a pretty good time to be, because they’ve got so many cases involving sexual abuse on the go that they don’t seem to have time for the standards of practice cases that most of us are concerned about.”

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