CAN A PATIENT BE FORCED TO TESTIFY AGAINST HER DOCTOR WHO SEXUALLY ABUSED HER?  

                                                

This is an interesting question because the first thing that comes to one’s mind is—why shouldn’t she testify against someone who sexually abused her?

The lawyers for Patient A, (whose name is covered by a publication ban) and the lawyers for the College of Physicians and Surgeons of Ontario (CPSO) agree that the woman has relevant evidence to present at the hearing but she refuses to attend and give testimony at the discipline hearing for Dr. Suganthan Kayilasanathan who is alleged to have sexually abused her.

Kayilasanathan faces allegations of unprofessional conduct and of sexually abusing Patient A, which he denies. The college alleges that Dr. Kayilasanathan wrote the woman two doctor's notes in the span of a week in December 2010 so that she could avoid taking exams and later, the two had sex at a Mississauga hotel one night during that same week.

Was her having sex with her doctor the payment the doctor expected in place of the normal fee of $50 for each note he wrote for his patient? If it was, he was in the wrong. Sex between doctors and patients is prohibited by law in the province of Ontario and no doubt everywhere else. The exception is if the patient is his wife.

The patient's lawyer, Neil Perrier, at the time of this article being published in my blog has brought a motion before the discipline panel to quash the summons that was served on Patient A, which creates a legal obligation for her to testify. Should the panel rule that the summons stands, but the woman still refuses to testify, the college has said it will take the unprecedented step of going to court to seek a warrant for the patient to be arrested and brought to the college to give evidence.

Patient A’s lawyer, Perrier argued before the panel that the CPSO unlawfully obtained Patient A's identity as part of its investigation, and effectively coerced her into co-operating. That means the summons served on Patient A should be quashed because it was obtained through an abuse of process.

The panel has heard that Patient A went to see another doctor (a female doctor) in early 2011, out of concern for sexually transmitted infections, when she read a February 2011 news report that Dr. Kayilasanathan had been charged criminally with sexual assault, in a case involving another woman. He was later acquitted by a judge.

The female doctor then reported Patient A's complaint against Dr.  The panel has heard that Patient A went to see another doctor in early 2011, out of concern for sexually transmitted infections, when she read a February 2011 news report that Dr. Kayilasanathan had been charged criminally with sexual assault, in a case involving another woman. (He was later acquitted by a judge.)

Patient A’s new doctor then reported Patient A's case to the college, as she was required to do by law, but withheld Patient A's name, as she did not receive the patient's consent to include her identity, another requirement of the law. However, several months later, a college investigator demanded that the doctor turn over Patient A's name and contact information, which she did to the college, as she was required to do by law, but withheld Patient A's name, as she did not receive the patient's consent to include her identity, another requirement of the law.

However, several months later, a college investigator demanded that the doctor turn over Patient A's name and contact information, which she did.

Perrier argued that the college therefore had unlawfully obtained the patient's name, and if the summons stands as it is, it will send a “chill” to patients in Ontario who may have been sexually abused by their doctors or anyone else who is in the medical field.

Her lawyer said, “Patients should be able to seek treatment from other doctors for sexual abuse at the hands of other physicians, without the threat of being drawn against their will into an adversarial process at the CPSO (or anywhere  else)

But the College lawyer, Carolyn Silver, while saying the regulator sympathized with Patient A's position, argued the college has broad investigative powers under the law, including ordering that doctors turn over the names of patients alleging sexual abuse at the hands of other physicians. She also said this was upheld in a decision by a different panel of the college's discipline committee, while acknowledging that the ruling is not binding on the panel hearing the Kayilasanathan case.

Silver argued that the  patient's personal desire to stay out of the proceeding was because she's worried about her parents finding out about her conduct, that must give way to the college's mandate to protect the public and other patients in Ontario.

The panel heard from Patient A herself who testified for the purposes of quashing the summons. Silver referred to that testimony saying the patient was worried that her parents would find out she was partying with Kayilasanathan and a friend in December 2010 rather than studying for exams. The patient said that to this day, her parents, friends and colleagues were unaware of the college case. (They are aware now since the information was published in the media)

Contrary to Perrier's arguments, Silver said Patient “A” was co-operative with the college, almost up until early November when the discipline hearing was set to begin.

Silver also contested Perrier's position that allowing the summons to stand could lead to the under-reporting of sexual abuse complaints to the college. She said each case must be treated based on the facts involved, and that in some instances, the public interest demands that the college order the disclosure of a patient's identity for the purposes of its investigation.

The college's position was echoed by the discipline panel's independent legal counsel, a lawyer from outside the college who provides legal advice to the panel, as they are not lawyers, but rather doctors and members of the public.

Lawyer Robert Cosman, whose advice to the panel is non-binding, after reviewing the law said, “There was no unlawful conduct by the college in obtaining her name the way it did, Without unlawful conduct, there is no basis to quash the summons for abuse of process.” unquote

Now I am going to give you an interesting question to ponder over. Since Patient “A” had previously told the other doctor about how Dr. Kayilasanathan had sex with her, why couldn’t the panel subpoena that second doctor and ask her to tell the panel what Patient “SA’ had told her?

The panel couldn’t accept that second doctor’s testimony because it would be hearsay. I will give you an example of hearsay  evidence not being acceptable.

In 1999, the Supreme Court of Canada heard a case in which an  accused was charged with sexually assaulting a five-year-old girl.  The complainant, who was six years and eight months old at trial, testified in a cleared courtroom behind a screen with a support person present.  She did not answer a another question when asked about the assaults and the Crown did not apresent a videotape of her extensive account given to the police.  Crown counsel applied to have her out-of-court statements given to relatives about the alleged assaults introduced into evidence for the truth of their contents as an exception to the hearsay rule, on the basis that the statements met the requirements of necessity and reliability.  On a voir dire, (trial within a trial) the trial judge ruled that the statements were inadmissible because the Crown, (prosecutor) had not presented evidence establishing why the child failed to testify. The Crown presented no further evidence, and the accused was acquitted.  

Keep in mind that Patient “A” did stated why she didn’t want to testify before the College’s panel.

One of the judges in the Supreme Court hearing the aforementioned case said in part;

“ There is no absolute rule that evidence must be called on the issue of necessity.  Where it is apparent from the circumstances before the trial judge that the child cannot give useful evidence, the judge may find out-of-court statements are “necessary” in the context of the rule of absent evidence.  This may be the case where the child is very young. 

I should point out that if Patient “A’” second doctor gave  her evidence as to what Patient “SA” her evidence would have a limited value, since it would come from a person who did not observe at first hand what really occurred in the hotel between Patient “A”  and Dr. Kayilasanathan.

At the same time, jail snitches have often testified under oath as to what a fellow inmate has told them about a crime that latter committed however such evidence for the most part is highly suspect.

The Supreme Court judge said (and this is important) “We may thus conclude that where it is self-evident that a child’s evidence will not be effectively available, the judge may find it necessary,  subject to reliability and therefor admit the child’s out-of-court statements..” unquote

If a court rules that Patient “A” doesn’t have to testify at the hearing, the panel can subpoena  her second doctor to testify as to what was said to her by  Patient “A”. Of course that will defeat Patient “A’s motive of keeping the info from her parents. However that is academic since they probably know in any case since as I said earlier, it was in the media.

The panel will release their decision at a later date. When I learn what it is, I will UPDATE this article with that new information.