Physician Sexual Assault: Do No Harm

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Charles E. Gluckstein /
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Physician Sexual Assault: Do No Harm

Written By: Kavinah Ravinthiran, Law Clerk

All around the world, doctors are highly respected for their ability to save lives and treat injuries and conditions. Physicians are viewed by many as the modern world superheroes, with whom you can be especially vulnerable. In the course of discussing ailments and concerns regarding physical and mental conditions with our bodies, patients typically do not second guess a doctor’s opinion or knowledge. One might say that they place their trust in doctors somewhat blindly. While most doctors are deserving of this type of trust, this vulnerability, coupled with the power imbalance between the patient and the doctor, could leave room for exploitation of the patient by the doctor.
Patients may not realize when they have become a victim of sexual violence due to the dynamic of the relationship between a doctor and patient. Physical contact is required for doctors to conduct examinations and assess their patients. This blurs the line, and it could become difficult to distinguish which behaviours are sexual in nature. To know when a boundary has been crossed, one must understand what behaviours amount to physician sexual assault. In these circumstances, physician sexual assault includes any misbehaviours that include sexual impropriety, such as gestures or expressions that are seductive, sexually suggestive, disrespectful of patient privacy, or demeaning of a patient. A doctor’s conduct may not be outwardly sexual in nature but can still amount to sexual assault. This includes a doctor performing unnecessary examinations or intentionally failing to wear gloves during an examination.
Physician sexual assault is not recognized as widely as it should be – mainly because we tend to tie the term sexual assault to an unknown and/or rogue perpetrator rather than a trusted medical professional. Unfortunately, physician sexual assault is much more prevalent than it seems, as it is widely unreported. By requesting that a nurse accompany the doctor during examinations (a cautionary practice that many physicians will prudently adopt on their own), one can prevent sex crimes from being committed against them. However, on a larger scale, physician sexual assault continues to remain a matter of concern that must be addressed.

Reporting the Incident
The main reason why this issue persists is that many sexual assault incidents go unreported. Victims are usually shocked and in disbelief once they are subjected to sexual assault by their trusted doctor. Like most sex crimes, victims may fear that they do not have enough evidence of the incident to take action against their offender. However, unlike other alleged sex crimes, consent does not provide a defence for a doctor who engages in sexual relations with a patient. The laws in Ontario establish that any sexual relations between a doctor and patient are prohibited, whether or not those relations are consensual. This prohibition is a universally recognized ethical principle in the field of medicine.
Failure to report, however, allows the predator to continue preying on susceptible patients. A few options are available for victims who wish to seek justice for any sex crimes committed against them by a doctor. This includes making a complaint through the College of Physicians and Surgeons of Ontario (CPSO), reporting the incident to the police, starting a civil lawsuit against the offender and institution, or any combination of these.

CPSO
The College of Physicians and Surgeons of Ontario regulates the practice of medicine in Ontario. To practice in Ontario, physicians must be a member of the CPSO. The CPSO establishes standards and policies for practice based on legislation such as the Regulated Health Professions Act (RHPA) and the Health Professions Procedural Code under the RHPA and the Medicine Act.
The CPSO plays a vital role in regulating the medical profession and possesses the authority to penalize medical professionals, including doctors, for non-compliance with its standards and policies. Ultimately, the CPSO is obligated to protect the public. Therefore, victims of physician sexual assault can make a complaint to the CPSO, which will then be investigated and, if deemed meritorious, submitted to the Discipline Committee. The Discipline Committee may conduct a hearing, and restrictions may be imposed on the doctor’s ability to practice. This may include an indefinite or temporary suspension to practice medicine.

Criminal
Similar to other sex crimes, victims of physician sexual assault also have the option of reporting the sexual assault to the police. The police will then investigate the incident independently and notify the CPSO. It should be noted, however, that studies show that less than half of the sexual assault cases in adult criminal court result in a guilty verdict. This is because in criminal cases, the standard of proof is very high, meaning that all of the elements of the particular crime must be established by proof beyond a reasonable doubt. The CPSO is not bound by such a standard of proof and may therefore impose sanctions on a doctor even if acquitted of any criminal charges.

Civil
Victims of sexual assault also have the option of suing their doctors directly. A civil lawsuit will allow for the victim to receive the appropriate financial compensation. When a hospital or other corporation employs the doctor, both the doctor and employer may be financially liable. Civil lawsuits of these types are often settled out of court for the benefit of the parties involved.

Reporting the Incident to the Hospital/Institution
In instances where the offender works for a hospital or another institution, victims of physician sexual assault have the option of making a complaint to the physician’s employer. Hospitals and medical facilities have a responsibility to provide their patients with a safe environment. Complaints made to the facility will be investigated and the physician’s employment may be terminated if a complaint is found to have merit. Since the physician’s employer may itself be exposed to civil liability where the physician has been found liable for, or guilty of, a sexual assault, hospitals and medical facilities have a further interest in preventing such physician behaviour, and complaints made by patients will typically be taken seriously.
Becoming a victim of sexual assault is always traumatizing, but especially when the offender is a trusted professional such as a doctor. Reporting the crime can change the future for others by bringing the offender’s conduct to light, thereby hopefully preventing other patients from suffering a similar fate