Written by Irvin Schein, Litigator, Mediator and Arbitrator, and originally published at irvinschein.com.
No one can doubt that the College of Physicians and Surgeons plays an important role in supervising the behavior of doctors by, among other things, prosecuting doctors who commit professional misconduct by breaching the legislation that governs their behavior.
It might be suggested, however, that the rules governing that behaviour are so extreme that they lend themselves to abuse by unscrupulous patients.
The draconian nature of these rules is illustrated by the recent decision of the College’s Discipline Committee to revoke the medical licence of Dr. Sammy Sliwin, a prominent Toronto plastic surgeon. Dr. Sliwin continues to practice because he has launched an appeal to the Divisional Court. He has been permitted to continue to practice until the appeal is heard. However, the circumstances surrounding the revocation of his licence lend themselves to a certain amount of head scratching if not outright disbelief.
Dr Sliwin’s trouble involves a woman who cannot be identified as a result of a publication ban. The decisions of the Committee refer to her to as Ms. A.
Ms. A met Dr. Sliwin in 1988 when she was a 29 year old married mother of two. She began to work for Dr. Sliwin from 1992 to 1995 and again from 2000 to 2005.
In the meantime, other elements of the relationship were developing, both professionally and personally.
Dr. Sliwin performed plastic surgery on Ms. A, at no charge, in 1992, 2001, 2002, 2004, 2007 and 2008.
It can be suggested that the reason that Dr. Sliwin performed these surgeries at no charge went beyond the fact that Ms. A was one of his employees. On March 8, 2001, Dr. Sliwin and Ms. A first had sex. While both testified before the College that they regarded this event as a “one time thing”, it appears that their mutual sexual attraction remained strong and they continued to have sexual encounters through 2007.
Ms. A testified before the Committee that their relationship ended badly. In 2008, she commenced a civil action against Dr. Sliwin, which was eventually settled. She also filed a complaint with the College which ultimately resulted in the proceedings before the Committee.
The problem is that the Health Professions Procedural Code, which is a schedule to the Ontario Regulated Health Professions Act, 1991, prohibits sexual abuse of a patient.
The definition of sexual abuse of a patient by a doctor is extremely broad. Sexual abuse is defined as:
- sexual intercourse or other forms of sexual relations;
- touching of a sexual nature of the patient; or
- behaviour or remarks of a sexual nature by the doctor towards the patient.
In order to find wrongdoing, the Discipline Committee must find a concurrence between the sexual relationship and the doctor-patient relationship. It does not matter which relationship began first. If they carried on simultaneously, an infraction has been committed.
The reasoning behind this legislation is quite straightforward. Patients are deemed to be vulnerable, by definition, and therefore in need of protection.
In this case, for example, one of the defences raised by Dr. Sliwin was that Ms. A was a “sophisticated consumer” of cosmetic surgeries who should not be considered vulnerable in the usual sense. She did not consider herself to have been sexually abused although she was not aware of the legal definition of that term and she had made it clear to the Committee that the relationship had been consensual.
This particular argument was rejected by the Committee. The Committee noted that courts have accepted that there is a power imbalance between a doctor and a patient so that as far as the court is concerned, no sexual relationship between a doctor and a patient can ever be truly consensual. The fact that Ms. A was sophisticated in matters of cosmetic surgery or that she considered the relationship to be consensual was irrelevant.
Dr. Sliwin also put forward the defence that the two relationships had not been concurrent. This was also rejected. It was found that sexual relations had taken place, although intermittently, between 2001 and 2007 and during that same period, Dr. Sliwin was Ms. A’s doctor and performed a number of surgeries. In fact, sex occurred in close proximity to some of these procedures on a number of occasions and certainly within the timeframe of the preoperative and postoperative treatment periods. Dr. Sliwin had been Ms. A’s doctor even before the start of their sexual relationship and after the first surgery, he chose to continue the sexual relationship while performing more procedures over the following years. In so doing, Dr. Sliwin was found to have engaged in sexual abuse.
The Committee went on to find that Dr. Sliwin’s conduct would reasonably be regarded by member of the College as “disgraceful, dishonourable and unprofessional” within the meaning of the Medicine Act, 1991, and therefore constituted professional misconduct.
The Health Professions Procedural Code provides for certain mandatory penalty provisions and one of them is mandatory revocation in instances such as those found by the Committee in the case of Dr. Sliwin. The Committee reconvened a penalty hearing a number of months later. At that time, Dr. Sliwin moved for an order that the mandatory penalty provisions in the Code were contrary to the Charter of Rights and therefore unconstitutional and unenforceable.
His first argument was that the mandatory revocation regime was never meant to apply to preexisting relationships. The idea behind this argument was that concern about the exploitation of the power dynamic between a doctor and a patient does not arise where the personal relationship predates the doctor-patient relationship.
Unfortunately for Dr. Sliwin, the Ontario Court of Appeal had considered exactly that argument in three earlier cases and dismissed it. There is no exception carved out for preexisting relationships.
In terms of the constitutional validity of the mandatory revocation provisions, the Ontario Court of Appeal in earlier cases also made it clear that “when it comes to sexual relations between a doctor and a patient, there is a black letter, bright line prohibition with a drastic sanction and no exceptions or exemptions… a patient’s consent is irrelevant”.
Dr. Sliwin also put forward the proposition that in a sense, his relationship with Ms. A was akin to a relationship between spouses and accordingly should be favoured with an exemption from the mandatory revocation provisions. This raises another interesting point in theory although the Committee dismissed this argument as well.
In 2013, a Bill entitled Regulated Health Professions Amendment Act (Spousal Exception), 2013 was enacted. Under that legislation, individual regulatory health colleges were given the authority to determine if a limited spousal exception to the mandatory sexual abuse provisions is appropriate for the members of the health profession governed by the College. There was an “opt-in” provision with a limited spousal exception. Remarkably enough, the College of Physicians and Surgeons of Ontario did not opt in and accordingly, there is no limited spousal exception that applies to physicians in Ontario.
This means, in essence, that a doctor is prohibited from providing medical treatment to his or her spouse (although the College does have a policy that provides an extremely limited exception for minor or emergency situations). Somehow, if you are a doctor and you are providing medical treatment to your spouse, normal marital relations with your spouse constitutes sexual abuse by definition.
While one might logically ask why on earth any spouse would lodge a complaint with the College in these circumstances, one must bear in mind that marriages end and angry ex-spouses do all of kinds of nasty things to each other.
Both the Ontario Court of Appeal and the College have made it abundantly clear that there is a zero tolerance policy when it comes to sexual relations between a doctor and a patient. However, I do have one anecdote that might cast the situation in a somewhat different light.
A number of years ago, I was approached by a woman with a complaint that her doctor had sexually abused her. She indicated that she had put a personal ad into the newspaper which was answered by a doctor who had only just become accredited as a doctor. They went out on a date during which time she complained of a massive headache. He rather foolishly prescribed a pain reliever for her. She filled the prescription, took some of the pills, and fairly shortly thereafter engaged in sexual relations with him.
This went on for several weeks until she ended it. She then approached me complaining that during a particularly vigorous sexual encounter, he had injured her. She asked me to demand compensation from him and insisted that I put forward the threat of a complaint to the College if he failed to pay up.
This struck me as a shakedown and I declined to take the matter on. However, I was deeply disturbed by the idea that this zero tolerance policy is open to abuse by unscrupulous patients. While I initially assumed that recent graduates would be the most likely victims of this type of behavior, I am not so sure that this is true.
While I have no doubt that the policy reasons behind this legislation are sound, and that patients who are vulnerable do require protection through the threat of drastic sanctions, I find it difficult to accept the idea of a zero tolerance policy. Surely spouses and predators like the woman I have described do not fall into the same category as a typical patient and I would suggest that a more flexible approach would be preferable.
In the meantime, the Committee’s ruling on the constitutionality of the Code provisions is on its way to the Divisional Court so the final chapter in this saga has yet to be written.