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.
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