Ontario Is Re-examining the Law that Allows Doctors to Practice After Sexually Assaulting Their Patients

Ontario's rules about health professionals who sexually abuse their patients are under review, after a Toronto Star investigation in the fall revealed some doctors were allowed to keep practicing after sexually assaulting their patients.

Officially, the self-regulating College of Physicians and Surgeons of Ontario has a "zero tolerance" policy for any sexual contact between doctor and patient, but the Star found more than 20 doctors who were allowed to keep practicing, albeit with some restrictions, after allegations of abuse. Of those, 20 aren't allowed to treat female patients without a chaperone, and one isn't allowed to treat male patients without a chaperone.

Doctors who commit crimes don't automatically lose their license under the law, but doctors who have sexual contact with a patient are supposed to. However, they're allowed to reapply to practice after five years—and in some cases don't lose their license at all. Dr. Sastri Maharajh was allowed to keep practicing after putting his lips on a patient's breasts, apparently because the law, the Regulated Health Professions Act of 1991, doesn't specifically mention breasts.

Another doctor, Kunwar Singh of Sarnia, is still practicing after 16 allegations of sexual assault. It's unclear why his license was never revoked, and the College of Physicians and Surgeons was not forthcoming with the Star during its investigation.

The College did not respond to multiple requests for comment from VICE.

In other cases, doctors are allowed to go back to work after a suspension, which is what happened with Dr. Eleazar Noriega. Noriega had already had his license suspended for sexually abusing a 17-year-old patient, and last Wednesday faced the College's disciplinary committee once more for allegedly assaulting a 15-year-old girl in his office in 1979. The teen had disclosed to Noriega that she had a history of being sexually abused.

After he pleaded "no contest" to the first charges, Noriega was suspended and allowed to keep practicing if he only saw female patients with a chaperone and posted a notice in his office explaining the situation. News reports sayhe had his license suspended again when the College found he was still treating female patients alone and hadn't posted any notice in his office about the charges. Then, six years ago, police laid and later dropped charges when a woman said Noriega molested her eight-year-old daughter in front of her.

There's a chance the current hearing still won't result in Noriega losing his license, because the alleged assault took place before the current law was passed.

Marilou McPhedran, a human rights lawyer and director of the University of Winnipeg's Institute for International Women's Rights, chaired the College of Physicians' 1991 inquiry that resulted in the current law. She then chaired the province's review of the law in 2000, and is now giving it a third try as the co-chair of the Ontario Minister of Health and Long-Term Care's task force to "modernize" the policy.

McPhedran's co-chairs are Roy McMurtry, the former chief justice of Ontario, and Sheila Macdonald, a nurse and the provincial coordinator of the Ontario Network of Sexual Assault/Domestic Violence Care and Treatment Centres. They'll review the current law, which applies to not just physicians and surgeons but psychiatrists, dentists, and any other regulated health professionals, and make recommendations for any amendments that should be added.

VICE spoke to McPhedran on her first day working on the review. She said their mandate is to "advise on various issues regarding sexual abuse of patients by regulated health professionals" and "modernize the province's ongoing commitment to zero tolerance of sexual abuse."

A 2008 document by the College of Physicians and Surgeons, Maintaining Appropriate Boundaries and Preventing Sexual Abuse, says the same thing. "The physician-patient relationship is characterized by a power imbalance in favour of the physician," it reads. "To maintain trust, a physician must avoid making or responding to sexual advances. Sexualizing the relationship is a clear breach of trust." Even the original Hippocratic Oath, written in the 5th century BC, forbids a doctor from having sexual contact with a patient.

On top of this power imbalance, the College must acknowledge the inherently gendered nature of sexual violence, says Andrea Gunraj, a communications specialist at the Metropolitan Action Committee on Violence Against Women and Children (METRAC), a Toronto organization that works with survivors of sexual violence.

"The key thing is that we have a power imbalance between women and men, and not just women and men but folks who fall outside of those stereotypes of what it means to be a woman and a man in our society," she said. "Sexual violence happens in relationships. It plays out in institutions, in hospitals, in other healthcare settings, in schools, at workplaces, and really it boils down to the fact that… women don't get the rights and respect that they deserve, that they are entitled to as human beings." Gunraj added that in addition to women, young people and LGBTQ folks are also at high risk of gender-based violence.

When McPhedran started working on the 1991 report, which was requested by the College of Physicians and Surgeons itself, she said the number of survivors who came forward shocked her.

"I don't think anyone predicted when we started in early 1991 that we would literally have hundreds of patients come forward—on the phone, in person, in writing," she said. "We heard from patients of other health professionals. We had people come in who wanted to talk to us about their religious leaders, their professors, basically people in all positions of power, because they had nowhere else to go with their testimony."

At the time, McPhedran said those in charge of the College decided they were "done with" her and the study they'd hired her to write. After experiencing significant resistance from doctors and their lawyers, her office at the College was simply padlocked shut, and members of the task force were escorted out by security, she said.

"I can say this… there was no official reason given."

So McPhedran and her colleagues kept working as volunteers, finishing the report despite their demotion. When the Minister of Health came knocking in 2000 to hire her to conduct a review of the 1991 law, she agreed again. After giving McPhedran a larger mandate to look at all health professionals, not just doctors and surgeons, and on an even shorter deadline, the department told her they didn't have the budget to print the report they'd commissioned.

"Another member of the media asked me, 'Why did you agree to do this when you've already done it twice?' and I said, 'because the policy of zero tolerance is still not being implemented,'" she said. "Of course I'm going to try again. This is not something we ever give up on."

McPhedran and the task force will be reviewing the law for the next six months, after which they'll make recommendations for any changes to the province. She said she aims to find out why the implementation of the current policies "has often been inadequate."

Follow Emma on Twitter.