September 3, 2019

Forcing patients subjected to sexual misconduct to testify in regulatory proceedings

Administrative Law
Professional Regulation

The public interest in health regulators eliminating sexual abuse by registrants may in some cases outweigh the individual interests of sexual abuse victims who refuse to voluntarily participate in investigations or discipline hearings. The Ontario Divisional Court applied that rationale as part of upholding a decision by a discipline committee to grant a summons for a patient who had engaged in a consensual sexual relationship with a physician: College of Physicians and Surgeons of Ontario v. Dr. Kayilasanathan, 2019 ONSC 4350.

In that case, the college alleged that a physician sexually abused a patient, based on their engaging in a consensual sexual relationship between physician and patient during a physician-patient relationship. The patient initially reported the sexual relationship to another physician, who then notified the college under a mandatory reporting obligation. The college investigated the issue and obtained the patient’s identity. The patient was, however, non-cooperative with the disciplinary process, and brought a motion to quash a summons requiring that she testify. The patient alleged that the summons would cause her embarrassment but did not argue that it would cause her re-traumatization due to reliving the experience and confronting the registrant. The discipline committee dismissed that motion. The physician (not the patient) then sought judicial review of that decision.

The Divisional Court found that the physician lacked standing to challenge that decision. But even if he had standing, the decision was reasonable.

The college acted appropriately in forcing the second physician to disclose the patient’s identity (para. 67). While a registrant is prohibited from including a patient’s identity in mandatory reporting of sexual abuse without their consent, the college was entitled to investigate and obtain that information from a reporting physician, and issuing a summons pursuant to its investigatory powers. The college must balance the patient’s privacy interests with the overall public interest in disciplinary proceedings. The Court emphasized college duties to both protect individual patients and to “encourage the reporting of such abuse” and “to eradicate the sexual abuse of patients” generally. The public interest outweighed the patient’s personal interest in avoiding potential embarrassment (para. 75). The Divisional Court additionally found that a health college’s overarching public protection mandate may take precedence over individual complainants’ interests in some circumstances (paras. 73-74).

This case illustrates that a college’s mandate extends beyond protecting individual patients, to protecting the public as a whole. In the case of sexual abuse victims, a college must consider not only the personal interests of a patient, but also encourage reporting of sexual abuse, and act to eradicate sexual abuse of patients entirely.

In British Columbia, under s. 32.4 of the Health Professions Act, a registrant with “reasonable and probable grounds to believe that another registrant has engaged in sexual misconduct,” the registrant must report the circumstances to the other registrant’s college, but if the belief is based on information from the registrant’s patient, the registrant must first obtain the consent of the patient before making the report at all.

College of Physicians and Surgeons of Ontario v. Dr. Kayilasanathan, 2019 ONSC 4350