Dialogue Volume 13 Issue 4 2017 - Page 91

DISCIPLINE SUMMARIES Disgraceful, Dishonourable or Unprofessional Conduct Dr. UVW is a family physician who saw the patient in a walk-in clinic. The panel members were unanimous that the Col- lege had not discharged its burden of proving that the questions Dr. UVW asked the patient constituted disgraceful, dishonourable or unprofessional con- duct. The panel concluded that the questions were clinically appropriate. The Committee accepted as fact that during the initial appointment with Patient A, Dr. UVW did ask three questions as alleged. However, the Commit- tee found the questions were appropriate and did not warrant a finding of professional misconduct. Sexual Abuse In addition, the majority (3) of the panel members found that the College had not discharged its bur- den of proving the allegations of sexual abuse. The majority found that the patient’s evidence was not sufficiently credible or reliable to support a finding of sexual abuse. In their opinion, the majority of the panel wrote: “Patient A’s initial declaration under oath of certainty about the date the alleged inappropriate touching began, when clearly she was not certain, raises serious questions about other elements of her certainty, such as her claim that it had happened multiple times,” stated the opinion. There were no extenuating circumstances explain- ing Patient A’s widely divergent stories about the frequency of contact, stated the majority opinion. Dissenting Opinion A minority (2) of the panel members found that the patient’s evidence of sexual abuse was credible and reliable, despite some discrepancies in her testimony and prior statements, and would therefore have found that Dr. UVW had committed sexual abuse. The dissenting panel members stated in their opinion: “We are mindful of just how vulnerable Patient A was; alone, pregnant, unsophisticated, naive and without social supports and clearly vulnerable pre- senting to a walk-in clinic far along in her pregnancy either not sure she was pregnant or in denial of her pregnancy, needing care. In the view of the Minority, Dr. UVW’s incomplete records and accompanying incomplete memory for the unusually frequent visits of Patient A to his walk-in stretches credulity. Patient A’s incomplete memory and inconsistencies are also concerning, though she is steadfast in her assertion that the touching occurred more than once. On the balance of probabilities, the minority favours the evidence of Patient A. The inference is drawn that based on the body parts touched (the breasts and the vagina), without clinical indication, that the touch- ing was of a sexual nature and so constitutes sexual abuse.” APPEAL SUMMARY DR. MARY ELIZABETH MCINTYRE Formerly Chatham The decision of the Discipline Committee was pub- lished in Dialogue, Issue 4, 2016. On August 5, 2015, Dr. McIntyre initiated an ap- peal of the finding of sexual abuse of Patient Y, and the penalty decision of the Discipline Committee to the Superior Court of Justice (Divisional Court). The appeal was heard on December 8, 2016. The Divisional Court dismissed Dr. McIntyre’s appeal on January 17, 2017 with $10,000 in costs to the College. Dr. McIntyre sought leave to appeal to the Court of Appeal for Ontario. On July 7, 2017, the Court of Appeal denied Dr. McIntyre’s motion for leave to ap- peal and fixed costs payable to the College at $1,000. ISSUE 4, 2017 DIALOGUE 91