For more than a year, the College of Physicians and Surgeons of Ontario (“CPSO” or “College”) has been attempting to revoke the license of a doctor who engaged in what a court previously referred to as one of “… the most egregious examples of sexual abuse by physicians.” The ongoing matter has now reached the Ontario Court of Appeal where, this week, the College continued to argue that the original penalty of a six-month suspension was insufficient.

A History of the Matter

Criminal Charges

In 2010 the physician in question, a doctor at a walk-in clinic, allegedly groped the breasts of six different patients under the guise of performing a medical exam. He was criminally charged with sexually assaulting the six women. After pleading not guilty to sexual assault in two of those cases, and sexual charges relating to the other four women being withdrawn, he ultimately pled guilty to two counts of simple assault. He was given a conditional discharge, 18 months’ probation, and was ordered to take counselling.

Discipline Committee Findings

The CPSO’s discipline committee, an entity independent from the College itself, reviewed complaints from the same six women, who were the physician’s patients at the walk-in clinic between 2009 and 2010.

The committee found that the physician sexually abused three of the women when he placed his stethoscope on their nipples and cupped their breasts, stating that “there was no clinical reason” for the physician to examine them in this way.

With respect to allegations from the sixth woman, the committee found that the physician’s “conduct was disgraceful, dishonourable or unprofessional” and that he demonstrated “egregiously poor judgment” when he told her that they should see one another socially.

According to the committee, the physician’s two criminal convictions were “relevant to his suitability to practice” with the panel finding that:

It is in fact difficult for the Committee to imagine a clearer example of an offence relevant to a physician’s suitability to practise than a finding, as in this case, that he has assaulted his patients in his office during the course of a medical examination.

However, the committee ultimately concluded that he was a low risk to reoffend. The panel noted that “the rehabilitative needs of [the physician] have been addressed. Specific and general deterrence have also been served”. The committee suspended the physician’s license for six months and ordered him to pay $35,000 in costs, stating that the penalty, in their view, was consistent with similar penalties previously imposed by the committee in similar cases.

The CPSO Brings the Matter to Divisional Court

The College had urged the committee to revoke the physician’s license, stating that a suspension penalty was unfit. Following the committee’s decision, the CPSO (in an unusual step) escalated the matter by taking the physician to court and asking the Divisional Court to order a new discipline hearing, arguing that the public is at a “significant risk” when the doctor returns to work. In its written submissions, the College noted that:

It is the [CPSO’s] position that revocation, which was the penalty it sought before the committee, is the appropriate penalty in this case, given the utterly egregious and deliberate nature of the respondent’s sexual misconduct towards his female patients

The College further argued that the committee’s penalty ruling was made “without regard to changing social values around penalties for sexual abuse committed by physicians on their patients”.

This marked a departure from the CPSO’s standard operating procedure, as the College does not regularly appeal decisions of the discipline committee. However, groping remains a grey area in terms of physician behavior that results in a penalty, and the appeal is indicative of the CPSO’s attempt to proactively address such actions. In almost every other form of sexual assault, including oral sex, masturbation, and penetration, the penalty is mandatory revocation of a medical license. In situations involving groping, whether or not to revoke a license is at the discretion of the discipline committee.

Following the committee’s decision, and in another rare move, the CPSO publicly commented on the matter, telling the Toronto Star that:

The College is disappointed in the discipline panel’s decision not to revoke [the physician’s] licence…[c]ouncil supports revisions to the legislation that would require mandatory revocation in any case where physical sexual contact with a patient is proven to have occurred.

The Divisional Court Decision

The Divisional Court ultimately ordered a new penalty hearing, delivering a strong reprimand to the discipline committee:

The public’s confidence in the medical profession demands more from the disciplinary process than recent sexual abuse discipline cases suggest…In the case of sexual touching of breasts of multiple female patients under the pretense of a medical exam, I would expect the committee to be debating whether to revoke the member’s registration or impose a suspension measured in years, as opposed to months.

The Court went on to say:

The facts of these cases are base. It is depressing to review them. They do little to encourage confidence in the committee’s approach to eradicating sexual abuse in the profession. Consistency in the imposition of sentence is a proper consideration, but a litany of clearly unfit penalties does not justify the penalty imposed in the present case…The penalty imposed … was clearly unfit. It was inadequate to protect the public and vindicate the integrity of the profession.

Following the Divisional Court decision, the CPSO commented again to the Toronto Star, stating:

Sexual abuse is a serious violation of the doctor-patient relationship. As we have advocated for in our sexual abuse initiative, and set out in our proposal to the Minister of Health to amend legislation, penalties for sex abuse must contribute meaningfully to the eradication of sexual abuse in the profession

The physician appealed the Divisional Court decision.

The Appeal

The physician’s appeal was heard this week. In the meantime, he has been practicing at a clinic in North York, where he can do so only in the presence of a female health professional approved by the College.

On appeal, lawyers for the physician argued that the Divisional Court judges made significant errors by declaring the history of previous penalties given by the discipline committee as “unfit”, and by failing to apply the principle of parity which dictates that penalties imposed for professional misconduct should be proportionate to penalties imposed in similar circumstances. The lawyers further argued that the Divisional Court should have shown deference to the discipline committee’s decision since the committee was in the best position to come to a conclusion about penalty after hearing all of the evidence.

On appeal, the CPSO again argued that the penalty initially provided by the discipline committee does not protect the public, and “undermines public confidence in the ability of the profession and the regulator to eradicate sexual abuse of patients by physicians”. The CPSO also noted that the committee has “improved” and “evolved” in recent years and has revoked licenses of doctors for those acts of sexual misconduct that do not result in mandatory revocation, but the discipline panel that made the decision in this case “did not meet those social norms”.

Indeed, the government passed Bill 87 in the time following this doctor’s discipline. The Bill, which we will explore in a future blog post, now makes it mandatory for discipline panels to revoke licenses of doctors who grope patients.

The Court of Appeal has not yet released its decision in this case. We will continue to follow developments in this matter, and will provide updates as they become available.

At Wise Health Law, we have many years of experience in navigating the medical, regulatory, and legal worlds. We have significant expertise assisting physicians and other health professionals in the civil and regulatory contexts, including in appeals and judicial reviews. Contact us for forward-thinking advice about health law and regulatory matters. Reach us online, or at 416-915-4234 for a consultation.

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