He allegedly committed a sexual offence against a woman who was not his patient
The Saskatchewan Court of Appeal has upheld the finding of professional misconduct against a doctor who committed an off-duty sexual offence.
The dispute in The College of Physicians and Surgeons of Saskatchewan v JL, 2023 SKCA 110 dealt with the extent to which a professional regulatory body can discipline a member of its profession or off-duty conduct.
The College of Physicians and Surgeons of Saskatchewan charged the doctor, JL, with one count of professional misconduct arising from an off-duty sexual encounter with a woman who was not his patient. At the time of the incident, Dr. JL was in the fourth year of his medical studies. He and the complainant had connected online through a well-known dating application. According to the complainant, Dr. JL forced her to have sex with him without wearing a condom, and she was "beaten…to the point of seeing stars."
The College's disciplinary hearing committee accepted the complainant's evidence and found Dr. JL guilty of unbecoming, improper, unprofessional or discreditable conduct within the meaning of s. 46(o) of The Medical Profession Act (MPA). The Council of the College suspended Dr. JL's licence indefinitely and issued a reprimand.
Dr. Leotowicz appealed to what was then the Court of Queen's Bench. The judge who heard the matter concluded that the committee committed an error in finding Dr. JL guilty of off-duty professional misconduct.
The College appealed to the Saskatchewan Court of Appeal, which ultimately ruled that the judge made an error in quashing the committee decision and vacating the professional misconduct charge against Dr. JL.
On appeal, the College argued that the judge committed an error in his application of the standard of review by applying a higher level of scrutiny to the impugned conduct, concluding the committee committed a mistake in finding that Dr. JL's behaviour constituted sexual assault within the meaning of the Criminal code, and improperly analyzing the nexus between private, off-duty conduct and the practice of medicine.
The judge was critical of the committee for failing to meaningfully consider the term "professional misconduct" as used in s. 46(o) of the MPA. On the other hand, the College argued that the judge wrongly concluded that because Dr. JL's conduct did not fall within the specifically defined examples of unprofessional conduct set out in the MPA, nor fall within the list of what constitutes "sexual misconduct" under s. 8.1 of the Regulatory Bylaws, his behaviour was less likely to constitute unprofessional and sanctionable conduct.
The appeal court explained that the wording of the MPA reveals a legislative intent to bestow broad discretion on a discipline hearing committee to determine, on a case-by-case basis, if any act or thing done or failed to be done by a physician is "unbecoming, improper, unprofessional, or discreditable." The appeal court emphasized that the legislature indicated that sanctionable conduct was not exhaustively limited to the types of activities, actions, or omissions listed in the MPA.
As a result, the appeal court found that the judge committed an error in his conclusion that because Dr. JL's actions fell outside the definition of sexual misconduct contained in the Regulatory Bylaws, they were somehow removed from the scope of professional misconduct.
The judge found that the committee committed an error by analyzing Dr. JL's conduct through a criminal law lens. The College argued that the judge misunderstood the committee's function and misconstrued its characterization of Dr. JL's actions as sexual assault in the criminal sense of the term.
The appeal court agreed with the College, finding that the committee did not commit an error simply because it used the term "sexual assault, which has a meaning in a criminal law context. The appeal court explained that the term sexual assault has a colloquial or general usage in various civil and administrative law contexts. Bodies like the Committee are empowered to label specific impugned behaviour as sexual assault in the same manner that decision-makers in civil actions refer to actions like fraud or theft, which also constitute crimes.
Further, the court said that Dr. JL had not been charged criminally, which did not prevent the committee from finding that actions that might amount to a criminal offence had been proven to have occurred based on the evidence before it. Accordingly, the court concluded that the judge committed an error in law in finding fault, with the committee establishing its finding of professional misconduct on its conclusion that a sexual assault had occurred.
The court noted the College's argument that the committee operated from an understanding that it could not sanction Dr. JL just because it found his actions reprehensible. There had to be a link or nexus between his conduct and his ability to practice medicine and the profession.
The appeal court pointed out that the judge placed too much stock on the brevity of the committee's reasons and the lack of direct evidence of a connection to the professional setting and too little on the nature of the conduct and how it relates to the profession itself.
The court recognized from case law that the behaviour of a professional in their private life may be self-evidently inconsistent with the core values of the profession and the need to maintain the public's confidence in the profession. The committee identified that a "core value of the medical profession is to do no harm" and that the "foundation of the physician-patient relationship" is consent.
While Dr. JL's conduct did not occur in a professional setting, the court said it was not unreasonable to infer that a person who violated the physical safety and integrity of an intimate partner with whom he was entrusted might also not respect personal boundaries in a professional setting. The court found that the judge's analysis emphasized whether the incident occurred in Dr. JL's capacity as a professional at the expense of a more robust analysis of the circumstances.
On the other hand, the court found that the committee decision, even though brief, was responsive to the considerations related to the profession's nature and the case's circumstances.
Ultimately, the court allowed the College's appeal, set aside the decision quashing the misconduct findings, and restored the committee's determination that Dr. JL is guilty of unbecoming, improper, unprofessional or discreditable conduct. The court also set aside the council's decision on penalty and costs and remitted those matters to it for reconsideration.
