The Doctor’s Lawyer: Character matters, even off-duty

Your sex life could ruin your career. Off-duty conduct, and which does not involve patients, can nonetheless subject a physician to discipline proceedings, and a possible revocation of their license to practice medicine. This case is not only a cautionary tale about a one-night stand gone wrong. It also raises the question of whether a physician’s own moral compass aligns with the profession in which they have the privilege of practicing. What happened? Dr. L’s medical career was derailed following a one-night stand, while he was off duty, and with a woman who was not his patient. Dr. L was in the fourth year of his medical studies. He met a date at a local restaurant, they had a few drinks, and went back to his apartment. His date, JT, later complained to the College of Physicians and Surgeons of Saskatchewan (“college”). JT complained that, despite her consenting to the sexual encounter and telling Dr. L that “she liked rough sex”[1], there were certain acts performed and, during the course of which, Dr. L had violated her consent. Read: The Doctor’s Lawyer: Physicians at risk when it comes to patient privacyThe college charged Dr. L with one count of professional misconduct, under section 46(o) of the Medical Profession Act, 1981, SS 1980-81, c M-10.1 (“MPA”). That section provides that a physician can be found guilty of professional misconduct “where the discipline hearing committee considers that action or failure to be unbecoming, improper, unprofessional or discreditable.” This is a basket clause that empowers a regulator to govern conduct that is not otherwise a specified act of professional misconduct. The Discipline Committee (“committee”) indefinitely suspended Dr. L’s license to practice. The committee also imposed an onerous, full indemnity costs award against him, totalling $96,577.10. Dr. L appealed to the Court of Queen’s Bench. The Court of Queen’s Bench quashed the committee’s decision and dismissed the charge against him. The college appealed to the Court of Appeal for Saskatchewan (“Court of Appeal”) (Dr. L also cross-appealed to the Court of Appeal). Following detailed reasons, the Court of Appeal sent the matter back to the committee to determine a more appropriate penalty and costs award. The case is nearly six years old, and it is still not over. In the meantime, as the Court of Appeal reported, Dr. L “has been unable to secure a residency position and further his education. For all practical purposes, his career is in limbo, if not perilously close to ending before it gets started. It is possible that he may need to retrain.” [2] What does this mean? The Court of Appeal recognized that the sexual misconduct provisions in the regulations pertain to sexual abuse involving patients. However, the Court of Appeal said: “That fact does not preclude a discipline hearing committee from concluding that, in an appropriate case, the impugned action is unbecoming, improper, unprofessional or discreditable.”[3]This means that in certain circumstances, egregious personal conduct can offend the fundamental principles of the profession, thereby subjecting the physician to professional regulation. Once the committee found that Dr. L’s moral compass was incompatible with the practice of medicine, the doorway opened to professional regulation over personal conduct. Off-duty conduct may be professional misconduct where there is a sufficient “nexus” between the physician’s personal conduct and the regulator’s “obligation to promote and protect the public interest.” The test is whether the conduct would have a “sufficiently negative impact on the ability of the professional to carry out their professional duties or on the profession to constitute misconduct.”[4]A key factor in the contextual analysis, to determine that personal-professional nexus, is the personal characteristics considered necessary to practice the profession. In other words: did the personal conduct demonstrate a disregard for the core values that underpin the medical profession? The committee, in this case, said: “A core value of the medical profession is to do no harm. Further, the essence of the work of the profession is to help and heal other human beings. Sexual assault is the antithesis of this creed and unacceptable to the profession. Though the conduct here did not take place in the course of duty, it discredits both Dr. [L] and the profession…“The medical profession holds its members to high standards both in their personal lives and their professional lives. Maintaining those standards of personal and professional conduct engenders and ensures public trust. Physicians hold positions of elevated status in society for their technical and intellectual abilities but also because they are trusted always to heal not harm. Dr. [L’s] conduct was such as to erode the confidence the public now has that they can feel safe with their physician.”[5] [emphasis added].The Court of Appeal said that it was not “an unreasonable inference that a person who violated the physical safety and integrity of an intimate partner with which he was entrusted might also not respect personal boundaries in a professional setting.”[6]The bottom line? The question before a committee will be whether the physician’s personal conduct was “self‑evidently inconsistent with the core values of the profession and the need to maintain the confidence of the public in the profession.” [7]A physician’s integrity is a non-exemptible standard and qualification to be granted a license to practice medicine, in the first place. This particular case is an example of how discipline charges may follow where, there are reasonable grounds to afford the belief that, the physician’s moral compass is incompatible with their ability to practice medicine with decency, integrity, honesty, and in accordance with the law in our civilized society. These same principles would likely apply in the context of any discipline proceeding involving physicians praising or denying acts of rape, or other forms of terror, online. Practicing medicine is a privilege, not a right. A physician’s moral compass strikes at the core of how they deliver patient care. A demonstration of wanton disregard or blatant contempt for civilized values would fly in the face of the underpinning principles of the medical profession in Canada.Brooke Shekter is an associate with TTL Health Law. [1]The College of Physicians and Surgeons of Saskatchewan v Leontowicz, 2023 SKCA 110 (CanLII) [CPSS v L] at para 8.[2] CPSS v L, supra note 1, at para 150.[3] Ibid at para 69.[4] Ibid at para 86.[5] Ibid at para 90.[6] Ibid at para 109.[7] Ibid at para 108.

The Doctor’s Lawyer: Character matters, even off-duty

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