Raising the Bar is Not Easy

In a series of cases over the last few years it seems clear that the College of Physicians and Surgeons of Ontario has been trying to impose more significant sanctions in sexual abuse and sexual impropriety cases. It has had limited success. The latest setback is found in Horri v. The College of Physicians and Surgeons, 2018 ONSC 3193, http://canlii.ca/t/hs8sz. Dr. Horri began a sexual relationship with a vulnerable and relatively young patient two weeks after the professional relationship ended. He acknowledged that he later learned that this conduct was unacceptable because of the ongoing power imbalance. He successfully completed a boundaries course, including follow up visits and introduced psychiatric evidence indicating that he was of a low risk to repeat such conduct.

The discipline panel revoked Dr. Horri’s registration. The Court said:

The Committee acknowledged that revocation was outside the range of typical penalties imposed in prior cases; however, revocation was justified because of the seriousness of Dr. Horri’s misconduct and the Committee’s concern that he did not have sufficient insight to control himself in the future. The Committee offered no review of similar cases. The Committee held that typical penalties might need to reflect changing societal values.

The Divisional Court quashed the revocation and returned the matter for further consideration. The Court held that where there was a significant increase in the sanction from the existing range of cases, some of which were even more serious in nature, the panel had to provide persuasive analysis beyond “changing societal values”. The previous cases needed to be evaluated in detail. The Court also indicated that, while it was open to the panel to reject opinion evidence about future risk of harm, it had to do so carefully and that it still needed affirmative evidence to conclude that there was an actual risk of harm.

Interestingly, the same month as this decision was released, amendments to the RHPA deemed such conduct to be “sexual abuse” engaging a mandatory order of revocation. Sometimes legislation is easier than litigation.

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