It is in fact difficult for the Committee to imagine a clearer example of an offence relevant to a physician’s suitability to practise than a finding, as in this case, that he has assaulted his patients in his office during the course of a medical examination.However, the committee ultimately concluded that he was a low risk to reoffend. The panel noted that “the rehabilitative needs of
It is theThe College further argued that the committee’s penalty ruling was made “without regard to changing social values around penalties for sexual abuse committed by physicians on their patients”. This marked a departure from the CPSO’s standard operating procedure, as the College does not regularly appeal decisions of the discipline committee. However, groping remains a grey area in terms of physician behavior that results in a penalty, and the appeal is indicative of the CPSO’s attempt to proactively address such actions. In almost every other form of sexual assault, including oral sex, masturbation, and penetration, the penalty is mandatory revocation of a medical license. In situations involving groping, whether or not to revoke a license is at the discretion of the discipline committee. Following the committee’s decision, and in another rare move, the CPSO publicly commented on the matter, telling the Toronto Star that:
position that revocation, which was the penalty it sought before the committee, is the appropriate penalty in this case, given the utterly egregious and deliberate nature of the respondent’s sexual misconduct towards his female patients
The College is disappointed in the discipline panel’s decision not to revoke
licence… ouncil supports revisions to the legislation that would require mandatory revocation in any case where physical sexual contact with a patient is proven to have occurred.
The public’s confidence in the medical profession demands more from the disciplinary process than recent sexual abuse discipline cases suggest…In the case of sexual touching of breasts of multiple female patients under the pretense of a medical exam, I would expect the committee to be debating whether to revoke the member’s registration or impose a suspension measured in years, as opposed to months.The Court went on to say:
The facts of these cases are base. It is depressing to review them. They do little to encourage confidence in the committee’s approach to eradicating sexual abuse in the profession. Consistency in the imposition of sentence is a proper consideration, but a litany of clearly unfit penalties does not justify the penalty imposed in the present case…The penalty imposed … was clearly unfit. It was inadequate to protect the public and vindicate the integrity of the profession.Following the Divisional Court decision, the CPSO commented again to the Toronto Star, stating:
Sexual abuse is a serious violation of the doctor-patient relationship. As we have advocated for in our sexual abuse initiative, and set out in our proposal to the Minister of Health to amend legislation, penalties for sex abuse must contribute meaningfully to the eradication of sexual abuse in the professionThe physician appealed the Divisional Court decision.
In December 2019, Ontario’s Attorney General introduced Bill 161, the Smarter and Stronger Justice Act (the “Act”), which became law on July 8, 2020. The Act hopes to simplify a complex and outdated justice system by bringing changes to how legal aid services are delivered, how class actions are handled, and how court processes are administered.
Of note, the Act has amended the Judicial Review Procedures Act (JRPA) to establish new rules as to when an application for judicial review may be brought.
Any decisions made on or after July 8, 2020 are now subject to a 30-day limit for bringing an application for judicial review unless another Act provides otherwise. Courts, however, retain powers to extend the time for making an application for judicial review if satisfied that there are apparent grounds for relief and that no prejudice or hardship will be incurred by the delay. Before these amendments, the JRPA did not set out any time limits for bringing an application, but courts had powers to extend the time to bring an application if another Act prescribed the limit.