Ontario’s College of Physicians and Surgeons receives many deeply concerning reports each year of doctors sexually abusing their patients, despite the adoption of a “zero tolerance” approach to such abuse 20 years ago.
This persistent problem has eroded public trust in doctor self-regulation. But now both the College and the province are poised to make long-overdue improvements in this area. The College recently proposed several reforms, while the government has appointed a task force to examine patient abuse. It’s a good start, but more needs to be done.
Under the current approach, doctors often continue treating patients (subject to restrictions) while the disciplinary process drags out over several years. For example, Dr. Tariq Iqbal, who was the subject of four complaints of inappropriate pelvic and rectal exams in 2011, did not receive practice restrictions until 2014 or his final penalty (which he is appealing) until October 2015.
These delays may put additional patients at risk, particularly if the College does not adequately monitor compliance with restrictions.
For example, pediatrician Dr. Eleazar Noriega’s license was restricted after he sexually abused a patient in 2003. He was then subject to additional discipline in 2013 for flagrantly breaching restrictions that he treat female patients only with a chaperone and post a notice to patients. Even after other abused patients came forward, the College Discipline Committee commented that its penalty was not a “professional death sentence,” citing Noriega’s ability to apply for reinstatement of his license.
An important concern with the current regime is that the “zero tolerance” approach applies only to the most egregious conduct. When the behaviour falls short of the requirements for mandatory revocation of license, the College has the discretion to order various penalties including reprimand, restrictions, temporary suspension or revocation of license. The College is often criticized for a lax approach to penalties in these discretionary cases. For example, only eight months after putting his mouth on a female patient’s breast, family doctor Sastri Maharajh was permitted to resume treating male patients.
The College recently proposed the mandatory revocation of a medical license for any “sexual contact” with a patient and the discretion to order immediate revocation after a finding of misconduct, without waiting months for a penalty hearing. This has been a long time coming, but even if the government amended the law to adopt these important changes, several gaps would remain.
First, there would be concerns with the adequacy of penalties for conduct falling short of “sexual contact.” Second, doctors subject to practice restrictions may continue to put patients at risk if the College does not properly monitor the restrictions. It is also unclear whether doctors who have displayed the poor judgment necessary to engage in sexual contact with patients have the judgment to carry on professional relationships with any patients, regardless of gender.
Another concern relates to the patient’s role in the disciplinary process. The College has proposed allowing victim impact statements and enhanced privacy of witness’ medical records during the disciplinary process. Again, a good start. However, these piecemeal changes fall short of meaningfully empowering patients.
During the disciplinary process, doctors are backed by their formidable defence organization, the Canadian Medical Protective Association, which is notorious for zealously defending its members. Taxpayers controversially bear the bulk of the nearly $200 million per year it costs to defend doctors against malpractice, professional discipline and even criminal charges.
Conversely, patients receive no publicly funded representation during the disciplinary process and are treated as witnesses rather than parties to the hearings.
Although the College’s proposals represent important progress, there is more to be done. Regulatory changes must come from government, including expanding the “zero tolerance” approach and empowering the College to revoke a license without waiting for a penalty hearing. By enshrining these changes in the Regulated Health Professions Act, patients would be protected not only from abuse by physicians but the many other regulated health professions in Ontario.
Provinces must also push for greater accountability of the Canadian Medical Protective Association, given the share of physician defence costs borne by taxpayers.
More broadly, regulatory bodies and the medical profession as a whole must train young doctors to respect appropriate boundaries with patients and create an environment where doctors can speak out about the inappropriate conduct of colleagues.
– Lorian Hardcastle is associate director of the Centre for Health Law, Policy and Ethics and Assistant Professor of Law at the University of Ottawa