Half of the doctors found guilty of sexually related professional misconduct in Ontario have kept their licences to practise medicine.

In one case, a London psychiatrist disciplined four times by the College of Physicians and Surgeons of Ontario (CPSO) for sexually inappropriate behaviour is still working.

In a few rare cases, physicians convicted in Ontario courts of sexual offences have not had their medical licences revoked by the college.

An extensive Spectator analysis of the college's disciplinary decisions since 1989 shows that there have been 64 medical licences revoked out of 126 disciplinary cases involving sexual impropriety.

Four other physicians were allowed to resign in cases involving sexual impropriety, and three of the physicians who had their licences revoked have since been reinstated.

The Spectator's investigation also shows that there have been at least three cases in which individual physicians have been disciplined for sexual impropriety more than once without losing their licences.

The Spectator's findings raise questions about the severity of punishments handed out to doctors who have committed sexual misconduct with patients.

"When you look at the aggregate, I think you have to conclude that the college has failed in its obligation," said Sanda Rodgers, a University of Ottawa law professor who is an expert in Canadian health law.

"The college's job is to regulate in the public interest and its job is protection of the public. Its job is not protection of its members.

"They're deeply sympathetic to the doctors and to the notion that the doctor could lose his livelihood," Rodgers added. "I think that's completely inappropriate.

"That's not their job. Their job is to deal with this kind of misbehaviour."

A spokesperson for the college said that a number of factors must be taken into account when the discipline committee decides on an appropriate penalty in cases of sexual impropriety.

* Dr. JOHN COWAN, Wasaga Beach

At a 2003 disciplinary hearing, Cowan was found guilty of a long list of offences, including sexual abuse of a patient by making remarks of a sexual nature. Cowan was also found guilty of careless use of a firearm after pointing a handgun at his receptionist.

In addition, Cowan was found guilty at his disciplinary hearing after evidence was presented that he passed out in front of patients, falsified a patient's record so the patient could continue to pilot an airplane, allowed his 16-year-old son to draw blood from patients, allowed his secretaries to perform some medical procedures on patients, and tried to coerce a patient into providing Cowan with 10 per cent of any settlement for a motor vehicle accident. For all of this, Cowan received a 12-month suspension, with nine months knocked off if he complied with certain conditions.

* Dr. KUNWAR SINGH, Sarnia

Singh, a pediatrician, pleaded guilty in Ontario court in 1991 to 10 counts of sexual assault and six counts of indecent assault. The charges covered a 16-year period and involved assaults against nurses and the mothers of some of his patients. Singh was given a suspended sentence and two years' probation for touching and squeezing women's breasts, buttocks, legs and groin areas. Nurses picketed two Sarnia hospitals in an effort to have Singh's hospital privileges revoked.

At his discipline hearing, Singh's lawyer said that taking away the doctor's licence could have disastrous consequences because a psychologist determined that Singh was suicidal at the thought of losing his career. The college handed Singh a six-month suspension.

Three years later, Singh was disciplined by the college for altering his Ontario medical record by removing any reference to his 1991 assault convictions. For this, Singh was suspended six months, with three months knocked off if he complied with certain conditions.

* Dr. STANLEY DOBROWOLSKI, London

Dobrowolski, a psychiatrist, has been disciplined four times by the college between 1994 and 2004 for a range of sexual misconduct and inappropriate behaviour during the 1980s. The incidents ranged from inappropriate touching and breast exams, to sexual intercourse with a former patient. The victims were female university students.

On one occasion, Dobrowolski was suspended for 12 months, with nine months dismissed if he complied with conditions. On another occasion, he was suspended for six months, with three months knocked off if he complied with conditions. On the other two occasions, he had conditions placed on his licence and was ordered to write letters of apology.

* Dr. ADRIAN OOSTERHOLT, Toronto

On two different occasions in 1989 and 1991 while attending as an emergency room physician, Oosterholt was found guilty of attempting to masturbate himself under his surgical greens in the presence of female patients he was treating.

In its 1995 disciplinary decision, the college noted that he likely harboured "some aggressive and hostile feelings towards women," that he was a heavy drinker, that he had an "inability to sustain mature heterosexual relationships," and suffered from mild neuropsychological impairment. On the plus side, the college noted, Oosterholt wasn't a psychopath, and didn't suffer from "significant" drug abuse.

Oosterholt was suspended for 360 days, with 180 days knocked off if he complied with certain conditions.

The committee must consider principles established in common law, precedents from earlier cases, aggravating or mitigating factors, as well as the seriousness of the misconduct.

"Does the proposed penalty protect the public? Will it serve as a specific deterrent to the doctor and a general deterrent to the profession?" explained Kathryn Clarke, the college's senior communications co-ordinator.

"In considering these issues, the discipline committee will also look at how similar cases have been treated in the past."

Clarke also noted that penalties must be in proportion to the offence because doctors can appeal disciplinary penalties to Ontario court.

In the past, the college has successfully defended some appeals, but there have been a handful of disciplinary penalties that have been reduced by the Court of Appeal.

In 1991, the college adopted a policy of zero tolerance of sexual abuse by doctors of patients.

The policy emerged from a groundbreaking task force on the sexual abuse of patients commissioned by the College of Physicians and Surgeons of Ontario.

In 1993, the Ontario government amended the Regulated Health Professions Act (RHPA) to toughen the provisions dealing with sexual impropriety committed by physicians.

Under the revised Procedural Code of the RHPA, doctors found guilty by the college of certain types of specific sexual abuse of patients -- such as intercourse or masturbation -- face mandatory revocation of their licence to practise. Doctors can apply for reinstatement five years after mandatory revocation.

But the college also has the power to recommend licence revocation for any act of sexual abuse that leads to a finding of professional misconduct.

The RHPA defines sexual abuse as sexual intercourse or other forms of physical sexual relations between the doctor and the patient, touching of a sexual nature, or behaviour or remarks of a sexual nature by the doctor toward the patient.

Law professor Marilou McPhedran, chair of the 1991 sexual abuse task force, said the law isn't the problem, it's the implementation.

"Over and over again, the analysis is (clouded) because it's the needs of the professionals that trump all other needs," said McPhedran, recently appointed Chief Commissioner of the Saskatchewan Human Rights Commission.

"As long as we -- as members of the public, members of the media, members of government -- allow ourselves to be persuaded by that point of view then we are not really approaching this issue primarily as a patient safety issue.

"We continue to allow it to be approached as a professional privilege issue," McPhedran added. "The law is very clear on this -- it is a privilege (to practise medicine)."

Take the case of Dr. Brian Nagahara, a general practitioner in Ajax.

In 1993, he was convicted in Ontario court of sexually assaulting a patient at a walk-in clinic in June 1991.

During the course of an examination, Nagahara fondled and squeezed the woman's breasts. He also touched and fondled her during a pelvic exam.

Nagahara was sentenced to six months in jail and three years' probation. He ended up spending 51 days in prison and another 20 days in a halfway house.

At the sentencing, the judge suggested it could be a "great many years, if at all, before Nagahara is allowed to practise medicine again in Ontario."

But at his disciplinary hearing before the college -- which wasn't held until three years after his criminal conviction -- Nagahara's licence was suspended for 90 days. Despite his criminal conviction and time spent in jail, the college noted that the doctor continued to deny his guilt.

Since the start of 2004, only five doctors have had their medical licences revoked for sexual misconduct in Ontario.

In that same period, there have been 11 other disciplinary cases of sexual misconduct that have resulted only in suspensions or reprimands.

"I think it would be fair to say they (CPSO) seem to have lost their momentum," said Rodgers. "They aren't anywhere close to zero tolerance," she added.

Rodgers has conducted her own analysis of sexual misconduct statistics gathered by the college from 1994 to 2005.

She concludes that only 5 per cent of all complaints involving allegations of sexual abuse over that period reached the college's disciplinary stage. Rodgers' findings will be included in an article entitled Zero Tolerance Some of the Time? to appear in an upcoming edition of the University of Alberta's Health Law Journal.

She also found that in cases where it was the patient's word against the doctor's word, there was almost never a finding of guilt for sexual misconduct unless corroborating evidence was presented -- multiple complainants, criminal convictions or evidence such as photos or hotel receipts.

"So many of these complaints disappear into the black hole in the process of the complaints committee," added McPhedran.

But McPhedran's greatest dissatisfaction is reserved more for the provincial government than the college.

"I think it's very important to hold accountable the provincial governments that continue to delegate their constitutional authority to these self-regulating bodies that the governments have created," McPhedran said.

The college noted that the number of sexual misconduct complaints it receives has been in decline in recent years -- from 57 complaints in 2002 to 31 in 2005.

The Ontario Medical Association declined The Spectator's request for an interview. Instead, the association provided The Spectator with a prepared written statement, signed by OMA president Dr. Janice Willett.

"Ontario doctors want to uphold the highest standards of care and believe it is essential that professionalism is rigorously enforced through the College of Physicians and Surgeons of Ontario," the OMA wrote. "In order to ensure the public is protected, the OMA believes in a transparent system where the doctors are accountable to the public through their regulatory college.

"Any finding of fraud or professional misconduct should be dealt with expeditiously and carry the appropriate disciplinary action."

The Spectator's investigation also found a small number of cases where the college's discipline committee accepted a version of events that didn't result in the need to impose mandatory licence revocation on the physician.

Take the case of Dr. Ashok Bhattacharya, an Oakville psychiatrist.

In 1997, Bhattacharya was treating a female patient with borderline personality disorder. In one of the sessions, the patient disrobed in front of him. In previous sessions, she had told the psychiatrist she had romantic feelings for him and had given him gifts.

On two subsequent visits, the patient disrobed and masturbated in front of Bhattacharya.

"He acknowledged that the therapy had lost all integrity by this point," according to the college's disciplinary decision. "However, he believed that he could continue to treat her and 'weather the storm' and that this behaviour would stop."

On a third visit, the patient and Bhattacharya sat next to each other on the couch in his office. The patient then proceeded to masturbate the psychiatrist.

"Dr. Bhattacharya testified that he felt paralyzed and did not move or speak," the college decided. "He described his state of mind while on the couch as 'dissociated' or an 'out-of-body' experience. He testified that he did not feel sexually attracted to her or gratified in any way."

Masturbation is one of the specific sexual acts that leads to mandatory licence revocation. Yet the discipline committee found there was no sexual abuse by Bhattacharya. Instead, he was found guilty of being incompetent "in his care and treatment of a patient."

No licence suspension or revocation was imposed.

"The discipline committee always orders the mandatory revocation penalty when it is applicable," said college spokesperson Clarke. "It uses its discretion to choose an appropriate penalty in all other cases."

Clarke also noted 16 cases where a doctor's licence was stripped even though the sexual impropriety didn't require mandatory revocation.

The Spectator's analysis found that of the 112 doctors disciplined by the college for sexually related misconduct since 1989, slightly more than 40 per cent of them were either psychiatrists or general practitioners conducting psychotherapy.

"The doctors who get into trouble are the ones who have ongoing, long-lasting relationships," said Dr. Harvey Armstrong, a Toronto psychiatrist and member of the 1991 sexual abuse task force. "The orthopedic surgeon isn't going to get into trouble," Armstrong noted.

"He sees you once and that's it."

Rodgers added that psychiatric and psychotherapy patients are particularly vulnerable. "They're targets, and targeted," she said.

The college said it has not developed any policies or procedures to specifically deal with the issue of sexual misconduct committed by psychiatrists or psychotherapy doctors.

The bigger question, Armstrong said, is how effective is the medical profession in identifying any doctors who are sexually abusing patients.

He cited a survey conducted by the college that showed about one in 12 women had experienced sexually abusive behaviour by their doctor. In the case of university-educated women between the ages 25 to 35, the number was about one in six women surveyed. "So not only is there a leniency in their responses, but there's also an inability to nail the perpetrators, and many of them are serial," Armstrong said.

The college is currently developing a comprehensive policy to help doctors understand and comply with the legislation concerning sexual abuse of patients.

sbuist@thespec.com

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