The Use of Precedents when Imposing Disciplinary Orders (Part 1)

The Divisional Court upheld a finding of sexual abuse and a resulting revocation of registration in College of Physicians and Surgeons of Ontario v. McIntyre, 2017 ONSC 116. While there were acknowledged serious concerns about the disrespect of patients and serious boundary crossings in respect of two patients, the only actual sexual abuse finding related to a single extended and passionate kiss.

The kiss occurred two months after the last billed patient visit. The Court upheld the finding that the person was still the patient of Dr. McIntrye because of the pattern of periodic visits and the absence of actual evidence that the professional relationship had been terminated. The Divisional Court stated that an adverse inference could have been made on whether the physician-patient relationship had been terminated before the kiss on the basis that Dr. McIntyre did not testify. There is no right to silence in discipline proceedings and in these circumstances applying the adverse inference principle would not have amounted to reversing the onus of proof.

The Court also rejected the propositions that there existed a principle that the sanction should be the least intrusive one in the circumstances or that revocation is reserved for the most serious misconduct by the most serious offender. This is consistent with another recent decision, Chen v. College of Denturists of Ontario, 2017 ONSC 530, where the Divisional Court rejected the proposition that revocation was ordinarily reserved for repeat offenders. The Chen case involved a denturist who systematically practised dentistry over a 2 ½ period and then falsely billed for the services in the names of actual dentists.

The Court also accepted that the Discipline Committee could depart from older precedents that may no longer reflect its (and society’s) understanding of the seriousness of the conduct:

The applicability of precedent and the general principle of maintaining consistency in the penalties imposed for similar situations are difficult issues for discipline committees, particularly on issues where public mores may be evolving…. The Committee also was guided by the importance of deterrence, protection of the public and ensuring that the public continued to have confidence in the College to protect the interests of patients…. In reaching its decision, the Committee was cognizant of the particular circumstances of this particular doctor and these particular patients. However, the Committee also took a broad policy-based view of its own mandate: to protect the public; to recognize the devastating impact on patients when the trust they place in doctors has been violated, particularly through sexual abuse; and to maintain public confidence in the ability of the medical profession to regulate itself in the public interest…. In our view, the Committee’s penalty decision is reasonable, defensible, and supported by cogent reasons.

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