September 3, 2013

Credibility, and evidence bearing on credibility, in discipline hearings

Administrative Law
Professional Regulation

As many health professionals provide services in private rooms, complaints of inappropriate touching or other sexual misconduct can be difficult to assess; a complainant and a registrant are often the only parties present, resulting in a classic “he said, she said” scenario. These scenarios present challenges to discipline committees, as such allegations are serious, but the evidence is conflicting. Panels face the difficult task of assessing credibility, as well as recognizing the relevance of information relating to a complainant whose credibility a registrant has a right to challenge.

The challenges of assessing credibility in an appropriate fashion, and ensuring a registrant’s right to test the credibility of a complainant, arose in College of Physicians and Surgeons of Ontario v. Beitel, 2013 ONSC 1599, where a complainant alleged, and a Discipline Committee (the “Committee”) found, that Dr. B, a psychiatrist, directed a complainant-patient to stand in front of him and expose his genitalia. Dr. B denied this occurred. The Committee found abuse, on the balance of probabilities. Dr. B appealed the decision to the Ontario Superior Court of Justice, which allowed the appeal.

The Committee’s reasoning on credibility: Respecting the allegation of sexual abuse, the Committee reasoned as follows. The Committee referred to four potential scenarios:

  1. The Complainant fantasized the incident;
  2. The Complainant misremembered or misunderstood the incident;
  3. The Complainant deliberately fabricated his account of the incident; or
  4. The incident occurred substantially as the Complainant testified. [18]

The Committee excluded the first two scenarios, finding no evidence of the complainant having a delusional pathology that would lead him to fantasize such an incident, and no evidence of cognitive issues that would account for his misremembering or misunderstanding.

The Committee decided against the complainant fabricating the event, given the complainant seemed embarrassed rather than vengeful, and that “[t]here was never an actual diagnosis of borderline personality disorder”. [21]

As for the incident occurring, the Committee noted that the complainant maintained the same account of the event from his first recounting to a nurse, through cross-examination. The Committee also found that Dr. B’s description of the Complainant as a happy and eager patient was incongruous with the complainant having left a message on the same day as his appointment saying he would not return. As the Committee did not believe the account of Dr. B, the Committee found that the incident took place substantially as the patient described.

The problems recognized by the court: The Court decided the Committee’s approach contained “fundamental flaws” which undermined its conclusions. [25]

First, by resolving the first three scenarios in favour of the Complainant based on the absence of evidence, the Committee effectively placed the onus on Dr. B to prove he did not sexually assault the complainant. [28] Once the first three scenarios were rejected, the remaining scenario was deemed to have occurred, and the Complainant’s version of events established. [29] But the Committee failed to consider that even if the first three scenarios were rejected, this did not establish the fourth scenario on a balance of probabilities.  Rejection of one party’s evidence does not equate to acceptance of the other. [30]

Secondly, the Committee compounded its reversing the onus of proof by its refusing to order disclosure of the complainant’s counselling records, based on those records likely being irrelevant, then relying on lack of evidence of the complainant suffering from a psychological or mental disorder. [35-37] The Committee acted unreasonably in relying on the absence of evidence it excluded as irrelevant: [38]

…even if it was reasonable for the Committee to dismiss the O’Connor applications, it was improper and unreasonable for the Committee to then draw inferences in favour of the Complainant on the very basis of the absence of the type of evidence that might have been disclosed through the O’Connor applications.

Thirdly, the Committee misused the complainant’s prior statements about the abuse. Instead of using them only to address the assertion of his account being recently fabricated, the Committee used his prior statements to support his testimony about what occurred: “This is precisely what the rule against prior consistent statements is meant to guard against.” [44]

For all these reasons, the court allowed the registrant’s appeal and set aside the finding of misconduct.

College of Physicians and Surgeons of Ontario v. Beitel, 2013 ONSC 1599