Patient will be forced to testify in MD abuse case
Ruling of physicians college says ‘public interest’ is at stake in forcing woman’s testimony
Ontario’s medical regulator will force a former patient to testify against a Toronto doctor accused of sexually abusing her.
A five-member panel of the College of Physicians and Surgeons of Ontario’s discipline committee said in a decision released Monday that the woman, identified as Patient A due to a publication ban, would be required to testify at the discipline hearing for Dr. Suganthan Kayilasanathan.
Patient A, who has said she does not want to participate in the proceeding, had hired a lawyer who argued in November that the panel should quash what is known as a summons, a document served on Patient A creating a legal obligation for her to take the stand.
Now that the discipline panel has refused to toss the summons, the college can ask a judge to have Patient A arrested and brought to the hearing by the police if she still refuses to attend, which would be a first for the regulator.
“As you know, the college has filed an application with the court to enforce the summons in the event that the summons is not complied with,” college lawyer Carolyn Silver told the Star on Monday.
Patient A’s lawyer, Neil Perrier, said they were “disappointed” with the decision and considering an appeal. Kayilasanathan’s lawyer declined to comment. New dates for the resumption of the discipline hearing are in the process of being scheduled.
“The college’s critical role of regulation in the public interest justifies the decision to pursue the merits of the case against this physician,” the discipline panel, comprising three doctors and two members of the public, said in its 20-page decision.
“In this particular matter, given the unique and carefully considered circumstances outlined by the college, the hearing can proceed only with the participation of the key witness, Patient A.”
Kayilasanathan faces allegations of sexually abusing a patient and of disgraceful, dishonourable or unprofessional conduct, all of which he denies.
The college alleges that he wrote Patient A two doctor’s notes in the span of a week in December 2010 so that she could avoid exams, and that the two had sex at a hotel one night during that week. Sexual activity between a doctor and patient is barred by Ontario law.
The regulator also alleges Kayilasanathan exposed himself to Patient A in his car when he drove her home one night two months later, after she had visited him at his condo but rebuffed his advances.
The woman never complained to the college herself. The regulator found out about her case through another doctor in early 2011, who Patient A had gone to see out of concern she may have contracted a sexually transmitted infection. (Health care professionals are required by law to report to their respective college allegations of other health care professionals and patients having sex.)
Patient A never consented to the other doctor providing her name to the college as part of the mandatory report, but the college ordered the doctor to disclose it.
Perrier, the patient’s lawyer, argued last year that the college unlawfully obtained Patient A’s identity as part of its investigation, and effectively coerced her into co-operating. He said the summons should be quashed because it had been obtained by the college through an “abuse of process.”
The panel found that the college has “broad investigative powers” granted under law to fulfil its mandate, while Perrier told the Star he finds the decision does not address how those powers allow the college to obtain the patient’s name.
Patient A told the panel herself she is fearful her family and friends will find out about the case. The panel said it did not accept “fear of personal embarrassment” was reason enough to override the public interest that would be served in having her testify at the discipline hearing.
“The committee is concerned that depriving the college of its ability to fully investigate and prosecute serious sex abuse allegations . . . would risk rendering the mandatory reporting requirement by health care professionals toothless in eradicating sexual abuse by physicians,” the panel said.
The college previously withdrew a professional misconduct allegation against Kayilasanathan in a separate case, after the woman in that matter also refused to testify.
The woman, who was not a patient, had alleged she was sexually assaulted by Kayilasanathan and his friend, Dr. Amitabh Chauhan, and testified at their criminal proceedings — both the preliminary hearing and their high-profile trial, where the pair was acquitted by a judge in 2014.
The woman’s lawyer had told the college she could not bring herself to testify a third time, and the college chose to withdraw the allegations.