by Written on behalf of Wise Health Law September 13, 2018 4 min read

The College of Physicians and Surgeons of Ontario (CPSO) receives and investigates complaints from patients about the conduct of physicians. The Inquiry, Complaints and Reports Committee (ICRC) may make an interim order, following a complaint, imposing conditions on the practice of the physician pending the full hearing of the complaint. The order is made pursuant to s. 25.4 of the Health Professions Procedural Code. It reads as follows:

Interim suspension

25.4 (1) The Inquiries, Complaints and Reports Committee may, subject to subsections (2) and (6), at any time following the receipt of a complaint or following the appointment of an investigator pursuant to subsection 75 (1) or (2), make an interim order directing the Registrar to suspend, or to impose terms, conditions or limitations on, a member’s certificate of registration if it is of the opinion that the conduct of the member exposes or is likely to expose the member’s patients to harm or injury.

Evidence Needed:

A recent decision of the Divisional Court of Ontario dealt with what evidence must be present to impose terms, limitations or conditions following a complaint. In this case, a female patient complained that the physician in question had sexually abused her during an auscultation as part of his examination. She alleged a touching and the comment “nice” in reference to her breasts. The doctor denied the comment and believed that any touching was incidental to his examination and not improper. He had practiced for 37 years without complaint. It was a year after the subject complaint, without any further complaints, that the ICRC imposed its conditions. The law appeared settled from the Superior Court decision of Liberman v. CPSO, in which the court found:

The Committee is clearly entitled to form its own opinion but it must do so on “some evidence," not evidence of below standard conduct, but evidence of probable harm. Here, I can find none. In coming to that conclusion I am not weighing evidence. I am searching for its existence. Without evidence of the probable exposure to harm, the Committee is merely speculating based in essence on one incident. That it cannot do.

Further, any order made must be the least restrictive possible needed to protect the public.

The Evidence Used:

The ICRC had made its assessment of future harm to the public based on the following:
  • There is no need for a physician performing an auscultation to touch the patient with any part of their body;
  • The allegations were serious-sexual abuse under the guise of a medical procedure-and therefore referable to a hearing by the Discipline Committee.
As a result, the ICRC felt it was able to infer from these facts that if true, was likely to expose his patients to a risk of harm or injury. The Divisional Court disagreed and the order imposing the conditions was quashed. The Court noted that:
  • There was no evidence upon which the ICRC’s conclusion could be based;
  • The operative finding had been that no touching was necessary during an auscultation despite the lack of any expert evidence and the competing explanation by the physician;
  • The ICRC cannot substitute its own knowledge for evidence; and.
  • Finding a prima facie case was not enough: if it were, the words “exposes or is likely to expose” would have no meaning.
In conclusion, the Divisional Court summarized its approach:

The determination of whether a doctor “exposes or is likely to expose patients to harm or injury” is a nuanced and difficult decision. Interim conditions are discretionary and extraordinary. They have the potential to greatly harm a doctor’s reputation and to do so quite unjustly if the underlying allegations are not made out. However, when dealing with issues of professional misconduct generally, and sexual abuse in particular, it is absolutely imperative that vulnerable patients be adequately protected. If society once erred on the side of protecting doctors’ reputations, times have rightly changed. The law prefers and gives primacy to the goal of protecting vulnerable patients. If there is a demonstrated likelihood that a doctor will expose his or her patients to harm or injury, the Committee is free to act and its opinion and remedial discretion will be accorded deference.

As noted at the very outset of these reasons however, the law requires that the Committee draw inferences and form its opinion based on evidence. It cannot speculate. In this case, it points to no evidence nor any basis to find that Dr. Fingerote is likely to expose his patients to a risk of harm or injury other than its finding that the allegations made could, if proven, amount to sexual abuse. The label “sexual abuse” is not, in and of itself, probative of the risk of future harm. It is the acts themselves that is, the evidence supporting the underlying charge - and then any other evidence of urgency or other relevant circumstances that are evidence on which an inference or an opinion may be formed. It may well be that there are cases where the facts alleged without more will be probative or logically related to the existence of a risk of future harm. However here, where the facts are contested, the conclusions are based on a person’s perception of another’s intention, and where there is a clinically appropriate explanation put forward with no evidence to the contrary in the record, the Committee needs to point to some evidence to support its inference or opinion that the doctor exposes or is likely to expose his patients to harm or injury.

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