Views split over forced testimony
MD sex abuse case focuses on compelling a victim to testify even if she is unwilling
Ontario’s medical regulator wants to force a former patient in a Toronto doctor’s ongoing sexual abuse discipline hearing to testify by having her arrested by the police.
As far as the College of Physicians and Surgeons of Ontario is aware, it is the first time it has sought what is known as a bench warrant from a judge in order to compel a reluctant witness to give evidence.
The refusal by the witness — known as Patient A due to a publication ban — to appear at the college has put the matter of Dr. Suganthan Kayilasanathan in jeopardy. Without her, there is likely no case against the doctor, who is facing allegations of sexual abuse of a patient and unprofessional conduct, which he denies.
The case raises the obvious question of whether it is ever in the best interests of justice to force the alleged victim onto the stand, particularly in sensitive cases such as sexual abuse.
Some critics view this unprecedented step by the college as an indication it is becoming more serious and aggressive in its sexual abuse prosecutions, following years of criticism from experts, courts and the public, while others say no good can come from compelling a witness.
Sheila Macdonald, who served on a provincial task force that made a number of recommendations last year to strengthen Ontario’s law around sexual abuse of patients by health professionals, is unequivocal in her stance:
“The college should not be forcing the patient to testify,” Macdonald, provincial co-ordinator of sexual assault and domestic violence treatment centres in Ontario, told the Star in an email.
“In the task force report, we made recommendations that would strengthen support for patients to help them through these lengthy processes and proceedings.
“Inaction on implementing these recommendations will maintain the status quo which includes victims who want to withdraw from the college proceedings.”
The task force was struck by Health Minister Eric Hoskins in the wake of a 2014 Star investigation into doctors still at work after having been found to have sexually abused their patients.
Some of its recommendations led to the creation of Bill 87. Passed in May, it amended the Regulated Health Professions Act, and added to the list of sexual abuse acts that require mandatory revocation of a health professional’s licence.
A key component of the recommendations — the creation of an independent tribunal to investigate, prosecute and adjudicate sexual abuse complaints against health professionals — has so far not been acted on by the government. (Hoskins’ office said this year he has engaged an advisory team to further study the recommendation.)
In the Kayilasanathan case, the college is alleging he wrote Patient A two doctor’s notes in the span of about a week in 2010 so she could avoid exams, and that the pair had sex at a Mississauga hotel one night during that week.
Under Ontario law, if a physician is found to have had sex with a patient, the penalty is automatic revocation of their licence.
Patient A didn’t complain to the college herself; the regulator found out about the case from another physician.
A doctor who finds out about another physician having sex with a patient is required by law to report them to the college. Bill 87 increased the fine to a maximum of $50,000 for failure of a health professional to report to the college.
Lawyers for the college and Patient A sparred last week before a panel of the college’s independent discipline committee, made up of three doctors and two members of the public, as to whether or not the patient was “coerced” into testifying.
College lawyer Carolyn Silver said the patient was co-operative in the early part of the investigation, and consented to the college accessing her medical records. Patient A’s lawyer, Neil Perrier, said she wants no part in the proceedings.
He will be bringing a motion before the panel on Nov. 20 to quash the summons requiring the patient to testify. The court hearing for the college’s application to enforce the summons and seek a bench warrant, which would lead to the arrest of the patient, has not yet been scheduled.
“This is going to be a serious motion that is going to bring into play a number of public-interest issues,” Perrier told the panel Thursday.
The college’s position on the summons is different than in a previous case involving Kayilasanathan this past spring. Along with another doctor, Amitabh Chauhan, he was facing a discipline proceeding on professional misconduct charges for alleg- edly drugging and sexually assaulting a woman. (The pair had been acquitted of the same allegations in 2014 following a high-profile judge-alone criminal trial. The burden of proof at the college is lower than in criminal court.)
But the alleged victim in that case also did not appear to testify. In that instance, Silver, who was also the college’s lawyer on that case, said the college would not be enforcing the summons by seeking a bench warrant, and withdrew the allegations against the two doctors.
In that case as well, the woman had not complained to the college. The regulator launched its own investigation in the wake of the criminal trial.
College spokesperson Kathryn Clarke told the Star that there were “unique circumstances” in that case, as the woman had already testified at the preliminary hearing and trial in the criminal matter, and her lawyer had told the college she could not subject herself to testifying a third time.
“The college regularly serves summonses on witnesses, which creates a legal obligation for them to attend at the hearing,” Clarke said.
“The college provides support to witnesses throughout the process in order to facilitate their participation in the process. When a witness does not comply with a summons, the college can seek a court order to enforce the summons.”
Forcing an alleged victim of sexual abuse to testify should be the option of last resort, given its potential to cause added trauma and possibly deterring others from coming forward, but it may be necessary in the present Kayilasanathan case, said medical malpractice lawyer Paul Harte.
Speaking generally, he said an alleged victim’s testimony is often the main evidence in sexual abuse cases, and without it, the allegations must be withdrawn, allowing a doctor to continue to practise and potentially exposing the public to further harm.
“The fact that the college is considering this largely unprecedented step is an important indicator of the seriousness with which the college now takes allegations of sexual abuse.”
PAUL HARTE MEDICAL MALPRACTICE LAWYER
“The prosecutor in this situation is between a rock and hard place,” he said. “The college will want to ensure that the alleged victim is provided with as much support as possible during the process.
“The fact that the college is considering this largely unprecedented step is an important indicator of the seriousness with which the college now takes allegations of sexual abuse.”
In the criminal context, defence lawyer Daniel Brown said Crown attorneys would typically shy away from having sexual assault complainants arrested in order to secure their testimony, although it has happened in other provinces and in other criminal matters.
“It’s already a traumatic experience to testify in a criminal case,” said Brown, who recently co-authored with Crown attorney Jill Witkin a handbook for lawyers on prosecuting and defending sexual offences.
“It’s traumatic to give evidence, especially involving sexual violence, and the Crown attorneys, for the most part, won’t put unco-operative complainants through that process.”