Please note: The identity of practitioners found not guilty has been omitted in accordance with Ontario law.

This case was previously reported in the January 1995 issue of Members' Dialogue, case #2.

On June 6, 1994, the Discipline Committee of the College of Physicians and Surgeons of Ontario, having found Dr. William Edward Turton guilty of professional misconduct with respect to sexual impropriety, directed that Dr. Turton's certificate of registration for Independent Practice in the Province of Ontario be suspended for a period of six months, with the latter three months suspended provided that certain conditions as set out by the Discipline Committee are met.

Dr. Turton appealed the decision of the Discipline Committee to the Ontario Court (General Division) on June 30, 1994. Dr. Turton abandoned his appeal on July 13, 1995. The certificate of registration for Independent Practice was suspended effective July 1, 1995. This suspension will terminate upon further notification.

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Dr. Vincent faced a charge of professional misconduct for disgraceful, dishonourable or unprofessional conduct for failing to cooperate in a College investigation. Dr. Vincent was not represented by legal counsel and by her choice she appeared on her own behalf. She entered a plea of guilty.

Both prosecution counsel and Dr. Vincent described the details surrounding these events. There was no dispute as to the facts. In March 1992 a complaint regarding Dr. Vincent was registered. The College wrote to Dr. Vincent on three occasions requesting her response to the complaint. Finally, she responded in April 1993. The Complaints Committee dismissed the complaint and thus, the substance of the complaint does not constitute the subject matter of the present hearing. What was in issue was Dr. Vincent's tardiness in responding to the letters from the College, a matter referred by the Complaints Committee to the Executive Committee. The Executive Committee ordered, in a letter, that Dr. Vincent meet with the Deputy Registrar and the Registrar. She failed to reply to this letter of August 24, 1993 and did not appear for the interview. Two subsequent letters in September and November of 1993 were met with no response. A College inspector visited Dr. Vincent at her office and informed her of her obligations in November 1993. Finally, after Dr. Vincent was served with a Notice of Hearing, she communicated with the College on February 1, 1994 and indicated she would plead guilty.

The Committee considered the relevant details surrounding the allegations, accepted the guilty plea and found that Dr. Vincent was guilty of professional misconduct.

DECISION REGARDING PENALTY
Dr. Vincent was exceedingly contrite and embarrassed. She explained that there were some personal events in her life which interfered with her usual ability to cope. At the time, she hoped the problem would "just go away".

The Committee was sympathetic toward Dr. Vincent and impressed with her sincerity and her clear and unconditional acknowledgement that she erred in failing to deal appropriately with the College directives.

The Committee, however, was mindful of the fact that members are obligated by law to respond to College inquiries and directives. Further, self-regulation requires the cooperation of the members. The possibly exonerating factors in this case were somewhat feeble.

Accordingly, the Committee ordered that the penalty be a reprimand, the fact of the reprimand is to be recorded on the Register, and a fine of $2,000 to the Treasurer of Ontario. If the fine is not paid by the stipulated time, Dr. Vincent's Certificate of Registration is to be suspended for a period of 60 days.

Dr. Vincent waived her right to appeal and the reprimand was administered.

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ALLEGATIONS
It was alleged that the doctor was guilty of professional misconduct for engaging in sexual impropriety with a patient, engaging in conduct or an act relevant to the practice of medicine that, having regard to all the circumstances, would reasonably be regarded as disgraceful, dishonourable or unprofessional, and for failing to maintain the standard of practice of the profession.

The particulars of the allegations were that during an appointment in January 1993 the doctor: 1) inappropriately touched the patient's breast or breasts; 2) inappropriately touched the patient's genitals including her clitoris during an internal examination; and 3) made an inappropriate comment of a sexual nature concerning female circumcision during the internal examination. The doctor pleaded not guilty.

THE ORIGIN OF THE CASE
The complainant, a native of Nigeria, has lived in Canada for over seven years. She consulted the doctor, a family physician, for the first time in July 1992, approximately three months after the birth of her first child, because her menstrual period was a few days late. She was worried that she might be pregnant again. After taking a history, the doctor examined her, made a clinical diagnosis of metrorrhagia (irregular periods), and asked her to return if her period did not occur. The complainant was entirely satisfied with this consultation, and her menstrual period started soon after.

In January 1993, the complainant returned to the doctor complaining of feeling weak, loss of appetite, aches and pains, and her menstrual period being nearly two weeks late. She told the doctor that she knew she could not be pregnant as she had discharge of milk from her breasts. The doctor conducted breast and pelvic examinations. A slightly enlarged uterus was noted and the doctor therefore ordered a pregnancy test. Before the patient left, the doctor made some comments to her about female circumcision.

DECISION AND REASONS
Allegation 1
The complainant testified that the doctor examined her right breast in a different way to any previous examination she had. It felt more as though he was fondling her breast rather than looking for lumps; he did not instruct her to put her hand behind her head. She felt maybe he was looking for milk. She took her other breast and squeezed it to show milk was coming out of it. She denied telling the doctor, while still in his consulting room, that she had discharge of milk from her breasts. She said she told him while he was examining her and was quite sure about this. The complainant was a credible witness, although she was uncertain about some of the details (whether the doctor gave her a sheet or a gown; and whether it was her right or left breast that he had examined). However, she testified that when going into the examining room she understood that she was to be examined and did not object to this. As noted above, she acknowledged that she thought the doctor might be looking for milk.

The doctor recorded in her chart that she complained of feeling weak, loss of appetite, and aches and pains, and noted the date of her last period, which corresponded to about six weeks amenorrhea. He also noted that 'patient says she cannot be pregnant because she has discharge of milk". He testified that he always records the history as the patient recounts it, and that the complainant told him about the milk discharge while in his consulting room. This led him to examine her breasts as part of a full examination, in attempt to confirm this discharge and establish a diagnosis, particularly in regard to the possibility of her being pregnant. He testified that he examined both breasts and attempted to express milk from them, which involved applying pressure to the breast around the areola.

Two physician experts testified as to the indication for such a breast examination, and the appropriate way in which to conduct it. There was a difference of opinion between them as to the necessity for a physical examination to diagnose pregnancy at such an early stage. One expert testified that with only six weeks amenorrhea, pregnancy could not be diagnosed with certainty by examination and a urine pregnancy test would be more appropriate. The second expert told the Committee that it is well-established that a physician should take a history and examine a patient before proceeding to laboratory tests, and it was his opinion that an examination was appropriate in a situation such as this. He testified that the date of the last menstrual period (which could be mistaken for implantation bleeding) is often unreliable; a pregnancy could be more advanced than would appear from the history, and this could be determined from an examination, which should include an examination of both breasts and the pelvic organs.

If the physician knew of the milk discharge before the examination, the first expert felt that the patient should be asked to demonstrate it; only if it was abnormal or the patient was concerned should the physician proceed to examination. Both breasts should then be examined. The patient should always be given a full explanation and she should consent to the examination. The second expert gave his opinion that attempting to express nipple discharge was part of a routine breast examination, whether pregnancy was suspected or not. It was always important, however, to explain any proposed examination to the patient and for her to give informed consent. The doctor charged testified that he told the complainant he would examine her, and, because she prepared herself by undressing, he assumed she did indeed consent. He agreed that he could have explained in more detail.

The Committee found the doctor's explanation credible and that it was supported by the testimony of the second expert, which the Committee accepted. The Committee concluded that a breast examination was indicated, that it was reasonable to assume that the complainant had given her consent, and that the doctor examined her breasts in an appropriate manner.

Allegations 2 and 3
The complainant testified that the doctor, after examining her upper body, put on gloves and performed a pelvic examination. He separated the labia and touched her clitoris. He then put his right hand into her vagina and, while examining her internal organs, she felt the same hand touching her clitoris "as though someone was trying to turn me on'. This lasted for 40 to 90 seconds. The doctor took his hand out of her vagina and, while removing his gloves, said "You're not circumcised - I guess they don't do that in Nigeria'. She felt badly and ashamed of herself, so said nothing to the doctor. The complainant said the doctor told her he wanted a pregnancy test and to pick up a "sheet for the lab". After the doctor left the examining room she dressed, walked out through his consulting room and along the hall to the waiting room, where the receptionist gave her the laboratory requisition. She denied speaking with the doctor after leaving the examining room. On leaving the office, she testified, she went home and told her husband what happened. She could not remember if she went to the laboratory before going home or later in the day. She did, however, agree that she went for the test sometime that day, as confirmed by the date on the test result in her chart.

In his testimony the doctor said that after examining the complainant's upper body and abdomen, he told her he wanted to do a pelvic examination. He asked her to draw up her knees, he put on gloves and moved the sheet up to cover her upper body and expose the pelvic area. He parted the labia with his two gloved hands, so that he could inspect the clitoris, the urethral meatus and the forchette. He denied touching the clitoris at this time. He inserted two fingers of his right hand into the vagina, placed his left hand on her lower abdomen, and performed a bimanual examination of the pelvic organs. Both expert witnesses confirmed that this was the accepted way to perform a pelvic examination.

The doctor acknowledged that he might have applied pressure to the complainant's clitoris inadvertently during the bimanual examination. He denied being aware of it or doing so intentionally. The first independent expert agreed that it was possible, but that such inadvertent touching would be brief. It was the opinion of the second independent expert that, during a thorough bi-manual examination, pressure lasting 45 seconds or more could be unintentionally applied to the clitoris and it could be perceived by the patient as being sexually stimulating. There was no evidence that the doctor was aware that the patient was distressed by the examination.

The doctor described how, after completing the internal examination, he removed his gloves, redraped the patient, asked her to remain there while he washed his hands, and to dress after he had left the room. He returned to his consulting room, closing the door behind him, and sat at his desk to record his findings in her chart. He denied commenting on circumcision while still in the examining room. After the patient rejoined him at his desk, the doctor testified that he told her that her uterus was slightly enlarged and she could be pregnant; he wanted her to have a test to confirm or rule-out pregnancy. He asked her if circumcision was the practice in her part of Africa, and was certain that he did so while in the consulting room when she was fully dressed, not in the examining room. The patient did not seem to want to talk about it so he pursued the topic no further; he did not realize he had upset her. The doctor does not recall saying 'you're not circumcised' or 'I guess they don't do that in Nigeria" but acknowledged that he might have said something like that.

The doctor testified that he had seen an Ethiopian woman in his off ice the week before who had been circumcised; when he examined her he did not know what he was looking at". She told him she had been circumcised. She raised the subject and seemed to feel open and comfortable about discussing it. From this experience, he felt it was appropriate to ask the complainant about the situation in her case. He knew very little about female genital mutilation and wanted to get general information about it and specific knowledge relating to the complainant, as it might affect her pregnancy. He now realizes that it can be a very difficult topic for some women to discuss and must be approached with great sensitivity. He regrets any distress he caused the complainant.

The defence expert witness testified that it was important for Ontario physicians to be aware of the possibility of genital mutilation in any women patients they might see who came from those countries where it is practised and whose citizens have emigrated here. Nigeria is one such country. It was his experience, however, that very few family physicians had ever seen a case, although articles in professional and lay publications have raised the awareness of both physicians and the public.

In support of his version of events, the doctor described his unvarying routine of directing patients into his consulting room to take history, performing examinations in the examining room, and only discussing his finding when the patient returned fully clothed to the consulting room. He would partially complete any laboratory requisitions and then accompany the patient back to reception, where the chart and the requisitions were given to the receptionist for her to complete, and then given to the patient. This routine was confirmed by the doctor's receptionist in her testimony, which the Committee found credible.

On considering the evidence, the Committee found that the doctor carried out a pelvic examination on the complainant in an acceptable manner; this was supported by the testimony of both expert witnesses, although they stressed how important it is for a physician to explain fully what is being done and to make sure that the patient gives informed consent. In this case, the doctor assumed that the patient implied consent by readying herself for the examination. While he may have touched her clitoris, he had no intention to do so and such touch could not be construed as being sexual in nature. It was agreed that some comments about female circumcision were made by the doctor, and this upset the patient. Whether he made these comments at the completion of his examination or after he and the patient were back in his consulting room is unclear. Either is possible.

CONCLUSION
After listening to and carefully considering the evidence presented to them, it was the unanimous decision of the Committee that the doctor is not guilty of the allegations made against him in the Notice of Hearing.

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The matter was heard in April 1995. It was alleged that Dr. de la Rocha was guilty of professional misconduct in that he had been found guilty of an offence relevant to his suitability to practice. It was alleged in the alternative that he had failed to maintain the standard of practice of the profession. In April 1993, Dr. de la Rocha was found guilty in the Ontario Court, (General Division), of administering a noxious substance, namely, 40 milligrams of morphine and 20 milliequivalents of potassium chloride with intent to endanger life, contrary to the Criminal Code of Canada. For this, a suspended sentence and three years' probation was imposed.

THE PLEA
Through his counsel, Dr. de la Rocha pleaded guilty to the charge of professional misconduct, by reason of his criminal conviction. At the outset of the hearing, the Committee was told the College was not proceeding with the alternate allegation of "failing to maintain the standard of practice' because, having committed a criminal act in the course of providing medical care, the doctor clearly failed to maintain the standard of practice and had acknowledged that. The Committee was informed that the College found the administration of potassium chloride unacceptable, but did not object to the administration of the morphine for palliative care purposes in the circumstances.

THE FACTS
The patient was a 68-year-old Timmins resident. She was diagnosed with lung cancer. After examining her in October 1991 and reviewing her x-rays, Dr. de la Rocha arranged to perform a bronchoscopy. The patient was admitted to hospital on October 14th in order to have the procedure performed on the 15th. She began to experience respiratory problems on the afternoon of 14th when an anaesthetist examined her in preparation for the bronchoscopy. He noted she was markedly cyanosed with partial airway obstruction such that he was unable to hear any breath sounds over the left lung. The anaesthetist called Dr. de la Rocha in order to discuss her respiratory status. Dr. de la Rocha arranged for her to be taken to the operating room that evening for him to perform a bronchoscopy, mediastinoscopy and possibly a tracheostomy.

He performed a transnasal bronchoscopy on the patient shortly before 2200 hours. He found a large tumour mass in the lower half of the trachea, occluding the left main bronchus almost completely, and the right main bronchus by 50 percent. During the procedure, she developed severe respiratory distress, was successfully intubated and thereafter required mechanical respiration to keep her alive. She was sent to the ICU in deteriorating condition, arriving there at 2300 hours. Within the next hour, her condition deteriorated further, she developed high air-way pressure and became difficult to ventilate. The anaesthetist was able to resolve her immediate crisis and concluded that her prognosis was very poor, and she was not expected to survive the night. Her son and niece sat with her and were present as her priest administered the Sacrament of the Sick.

The patient survived the night. She was unconscious, her skin grey and cool to the touch. A second son arrived from Sudbury during the night and was told at 0930 hours on October 16th by the doctor that his mother was unlikely to survive the next 24 hours. On being asked what his wishes were, the son told Dr. de la Rocha that while he wished that no extraordinary measures be taken if his mother took a turn for the worse and that she not be revived, he hoped that she would still be alive when his other brother arrived later in the day

The doctor then wrote a 'do not resuscitate" order and the patient was made as comfortable as possible.

About 1600 hours, the patient opened her eyes and appeared to be alert and oriented, nodding and shaking her head in answer to the nurse's questions. She gave the nurse to understand that she wanted the tube removed, even though the nurse told her this would cause her to die. The family was called in around the bedside, and they were able to communicate with the patient and confirm that removal of the tube was what she wanted and she was fully aware of the consequences. The family provided her with support and assured her that her request would be honoured. The patient asked for assistance in removing her rings and discussed arrangements for her funeral with her family. One of the sons asked for Dr. de la Rocha to be called to extubate their mother.

The doctor arrived about 1810 hours and was told by one son that the family supported his mother's wish to have the tube removed and to be allowed to die. There was no discussion about hastening her death or authorizing someone to do so; her sons simply expressed the desire that she be made comfortable following extubation. Dr. de la Rocha spoke with the patient, telling her that he was going to remove the tube, and, once it was removed, she would die. She thanked him.

Dr. de la Rocha proceeded to extubate the patient and pulled the curtains around the bed to provide some privacy for the family. She was breathing on her own at this time with the assistance of 50 percent oxygen by mask. Her heart rate was steady and her oxygen saturation the same as before extubation. Dr. de la Rocha administered 10 mg of morphine intravenously, followed shortly by a second 10 mg of morphine. The patient's respirations were shallow and her heart rate remained steady. Dr. de la Rocha then administered another 20 mg of morphine and by this time she had stopped breathing with her heart rate dropping to the 50s. Dr. de la Rocha then asked if there was any potassium chloride in the unit. The nurse said there was but refused to get it for him. He proceeded to draw up 20 mEq of KCL into a syringe himself. Without waiting to observe the effects of the last dose of morphine, Dr. de la Rocha injected the KCL as a bolus into the IV tube. Within a minute, the patient went into ventricular tachycardia, then into ventricular fibrillation and died at 1830 hours. Dr. de la Rocha pronounced her dead at 1835 hours and subsequently signed the death certificate.

Because of Dr. de la Rocha's highly unusual actions, the nurse in attendance expressed her concerns to her fellow nurses and the matter was subsequently reported to the ICU Nurse Manager, the Director of Nursing, the Hospital Administrator and the Chief of Medical Staff. In further discussions, Dr. de la Rocha admitted that he had administered large doses of morphine intravenously plus a bolus of KCL; that he had done so to hasten the patient's death; that he believed in euthanasia; and that the family had given him their support by requesting their mother not suffer needlessly. He maintained that under the circumstances he had done the right thing.

THE FINDING
The Committee accepted the guilty plea and found Dr. de la Rocha guilty of professional misconduct.

SUBMISSIONS CONCERNING PENALTY
The College counsel emphasized that Dr. de la Rocha had made an error in judgement, had clearly failed to meet the standard of the profession and the profession must realize this. A physician must not draw a line that is separate from the law of the land. The Committee was referred to the decision of the Supreme Court in the Rodriguez case and the College asked for a penalty of a 12month suspension of his certificate of registration, six months of which to be suspended according to a number of conditions.

Defence counsel reminded the Committee that, while it was necessary to send a message to the public and the profession that the doctor's behaviour fell below the standard of practice and cannot be condoned, Dr. de la Rocha was genuinely contrite, a sadder but wiser man, and needed no further deterrence. Two similar cases were cited, one from Quebec and one from the United Kingdom. They were different, however, in that each involved death caused by administration of potassium to a terminally ill patient (at the patient's request), neither of whom was at the point of death. Neither of the physicians involved was suspended. The patient in this case, however, was about to die within seconds or minutes from her disease, whether or not the KCL was administered.

CONSIDERATIONS RELEVANT TO PENALTY
With regard to appropriate penalty, the panel considered a number of issues, including: the fact that denunciation for his act has already occurred via a public criminal trial and discipline hearing and that the penalty for this serious offence should be recorded on the Register; it must be made clear to the profession and the public that arbitrary termination of life is not allowed; no further specific deterrence for Dr. de la Rocha is needed, as he is unlikely to re-offend.

The Committee recognized that the management of most terminally-ill patients in a community hospital is usually the prime responsibility of the family-physician and other members of the palliative care team, not a surgeon. This case, involving removal of lifesupport, would be an exception. Even so, any physician in such a situation should realize that involving the family physician and others, including the family, would help them to make appropriate decisions. The most desirable outcome of this case would be to assist others in dealing with comparable situations.

DECISION REGARDING PENALTY
The Committee decided to suspend Dr. de la Rocha's certificate of registration for 90 days and ordered that the suspension itself be suspended if Dr. de la Rocha filed with the Registrar a written undertaking to prepare a proposal for a protocol for use in community hospitals, concerning the withdrawal of life support from terminally ill patients, and provided further that:

a) within 30 days of filing the written undertaking he submit to the Registrar an organizational plan for the development of the proposed protocol;

b) the proposal for the protocol shall address the pharmacological management of symptoms, as well as the subjects of informed consent, ethics, patient autonomy, and the involvement of the family and the family physician in the decision-making process;

c) in the course of preparation of the proposal for a protocol, Dr. de la Rocha shall review relevant literature and consult widely with experts in palliative care, ethics and critical care, and with patients'rights organizations;

d) the proposal for a protocol shall be of such quality that it be suitable for submission to a peer-reviewed journal, and shall be submitted by Dr. de la Rocha for consideration for publication by such a journal;

e) Dr. de la Rocha shall, within 270 days of filing the written undertaking, submit to the Registrar a copy of the proposal for a protocol, and written confirmation that he complied with subparagraphs b, c and d above;

f) if, having filed the written undertaking to he fails to comply with the deadlines laid out, Dr. de la Rocha's certificate of registration will be suspended for 90 days.

g) the result of this proceeding shall be recorded on the register

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An Application for an Order to vary the terms, conditions and limitations that currently apply to Dr. James Callaghan's certificate of registration was heard in May 1995.

THE BACKGROUND
In a decision of February 1993, the Discipline Committee found Dr. Callaghan guilty of professional misconduct for having failed to maintain the standard of his practice of radiology in a community hospital, and guilty of incompetence.

The Committee suspended his certificate of registration to practise for six months but allowed for a suspension of that sentence provided that Dr. Callaghan present details of an acceptable position of employment in a supervised setting which met the concerns of the Committee. Failure to meet this latter requirement would result in a revocation of his certificate of registration.

In a September 1993 decision, after hearing an Application to suspend the suspension of Dr. Callaghan's certificate of registration, the Committee made the following order:

1) Dr. James Callaghan's certificate shall be restricted to practising in a program established for him by the Department of Diagnostic Imaging at a major city hospital for a period of one year;

2) Such practice shall be under the supervision of Dr. A., Chief of Radiology, or his alternate;

3) An entry needs assessment and an exit evaluation shall be performed and be made available to the Registrar of the College and on any future application to this Committee to vary these regulations;

4) All work by Dr. Callaghan in the Department of Radiology shall be supervised by members of said Department;

5) Dr. A. or his alternate shall provide quarterly reports to the College which, in form and content, are satisfactory, in his sole discretion, to the Registrar;

6) Should any report be deemed unsatisfactory by the Registrar or any of the terms and conditions of this restricted certificate not be complied with, Dr. Callaghan's certificate of registration to practise shall be immediately suspended in accordance with the Committee's decision of February 26,1993; and

7) Any request for an extension of variation of these conditions shall be made by way of timely application near the end of the one year period of the program referred to in paragraph 1 above.

Through his counsel, the Committee heard an overview of the problems that led to Dr. Callaghan's two previous appearances before the Discipline Committee, and Dr. Callaghan's actions to fulfil the conditions imposed on his certificate of registration. Various reports were placed in evidence.

The Committee considered the report of Dr. C., dated March 27,1995, in which he reviewed the various reports of University radiologists before, during, and after Dr. Callaghan's three month attachment to their department in 1989. In his report, Dr. C. reiterated that in 1989 he and his colleagues "were comfortable recommending reinstatement of his certificate of registration and that he was a competent, careful and adequate radiologist'.

On his return to clinical practice, Dr. Callaghan had problems and failed to meet the standard of practice required of a general radiologist. A consultant's report at the time described Dr. Callaghan as having an "operational failure'. While he appeared to have a good knowledge base, he was "lacking in the skill required to perceive radiological lesions and in judgement as to appropriate clinical advice to be given".

The Committee heard that Dr. Callaghan had now fulfilled all the conditions imposed on his certificate of registration. The quarterly reports were all satisfactory, and in his exit evaluation Dr. A. concluded by saying "It is my opinion that this physician is competent and able to practise general radiology, fluoroscopy and ultrasound. I have not been able to find any evidence of substandard practice and recommend that his certificate be reinstated. I have no information to suggest that his certificate to practise medicine or his ability to practise radiology in this province should be in any way limited [or] interfered with." Independent evaluations were carried out by four other radiologists and all reported that they were confident that Dr. Callaghan was competent to practise general radiology.

Dr. Callaghan told the Committee that, in hindsight, he did not realize the extent of the stressful work situation in the community during the 1989-1991 period after his University traineeship, and it was the only way he could explain the errors and omissions that he committed. His difficulties arose from a combination of his own poor judgement and personality conflicts with his colleagues. Now he feels he has gained perspective about what to look for, he understands himself, is able to appreciates signs of problems developing with colleagues, and realizes it is possible to take appropriate steps to resolve such issues. He is now confident in his own abilities and anxious to return to general radiological practice.

SUBMISSIONS REGARDING DECISION
Counsel for the College and for Dr. Callaghan presented the Committee with a draft Order to vary the terms, conditions and limitations imposed upon Dr. Callaghan's certificate of registration. This Order was agreed upon by both parties, except for the extent of the new terms, conditions and limitations to be so imposed. The College recommended a twelve-month transitional period of supervision; Dr. Callaghan, through his counsel, asked for a six-month transitional period of supervision.

THE DECISION AND ORDER
The Committee was impressed by the reports of the evaluating radiologists, all of whom attested to the competence of Dr. Callaghan after he had participated in the rehabilitation program required of him at his previous Committee hearings. It recognized that the year he spent under the supervision of Dr. A. at a major city hospital was an appropriate learning experience for a general radiologist, and he appeared to have benefitted fully from the opportunity. He would not be returning to his previous stressful practice situation.

The Committee agreed that some period of supervision v.,as necessary. However, there was no evidence presented to suggest that supervision for a period of one year was any more necessary than for a shorter period. It was the opinion of the Committee that Dr. Callaghan's standard of practice was unlikely to deteriorate again, in view of what he had to lose if he allowed such deterioration to occur. Any facility where he practised would be aware of his situation. The time had come to allow him to return to as normal a professional life as possible.

After hearing the submissions of counsel for both parties, and after considering the submissions filed subsequently with respect to the form of the Order, the Committee makes the following order.

ORDER
The Discipline Committee made an Order directing the Registrar to remove the terms, conditions and limitations currently imposed on the certificate of registration of Dr. James Edwin Callaghan, and to substitute the following terms, conditions and limitations: Dr. Callaghan may only practise general radiology, fluoroscopy and ultrasonography, and only in accordance with the supervisory and other provisions in the rest of this order. The objective of the practice experience authorized by this Order is to provide a transitional period of six months to assist Dr. Callaghan in the transition from a heavily supervised practice towards an independent practice. The six-month practice experience authorized by this Order must be completed by Dr. Callaghan within twenty-four months of the date of this Order. During the term of this Order:

Dr. Callaghan may only practise in a diagnostic facility licensed under the Independent Health Facilities Act which has a certified radiologist as its quality advisor, or in a public health facility;

Dr. Callaghan's practice will be reviewed in detail on an ongoing basis, at Dr. Callaghan's expense, by a certified radiologist agreeable to Dr. Callaghan and acceptable to the Registrar.

Reports regarding the assessments will be sent by the supervisor to the College's Director of Professional Enhancement. The supervisor will promptly inform the Director of Professional Enhancement if Dr. Callaghan is not practising in accordance with the standards of radiological consultation in Ontario, or if

Dr. Callaghan is removed or suspended from the diagnostic facility The supervisor will notify Dr. Callaghan and the Director of Professional Enhancement, if the supervisor believes that Dr. Callaghan's performance is placing patients at risk and Dr. Callaghan will immediately stop practising.

Dr. Callaghan is to appear before the Discipline Committee again if the supervisor's reports are not satisfactory. If the Committee forms the opinion that Dr. Callaghan is not progressing satisfactorily, or that different methods of supervision are necessary to accomplish the objectives of the practice experience, the Committee may amend the terms, conditions and limitations imposed on his certificate of registration accordingly. If the Committee receives information leading it to believe there has been a breach of any of the terms, conditions and limitations in this Order, or other adverse information about Dr. Callaghan, it will take whatever steps it considers advisable in the interests of the public and of Dr. Callaghan, including the revocation of Dr. Callaghan's certification of registration.

If Dr. Callaghan complies with this Order and his assessments are satisfactory, the terms, conditions and limitations currently imposed will be removed from his certificate of registration.

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The matter was heard in August 1994. Dr. Jabouin was charged with professional misconduct regarding sexual impropriety with a patient, failure to maintain the standard of practice of the profession and disgraceful, dishonourable or unprofessional conduct. He pleaded not guilty. No evidence was presented regarding the allegation of failure to maintain the standard because the second complainant decided not to testify.

CASE FOR THE PROSECUTION
The first witness was a woman who was 19 years old when she began working for the doctor in October 1991 as a part-time receptionist during the evening and occasionally on weekend afternoons. She told the doctor that she was sexually harassed at her previous job. She testified that shortly after she began working for him, she received a call from a male friend who arranged to help her look for a new apartment. Dr. Jabouin asked her who had called, and he then questioned her regarding her relationship with her friend, suggesting that he did not want to be her friend but wanted to sleep with her. He then asked if she slept with her boyfriend. The conversation made her feel uncomfortable and scared and before ending it, the doctor suggested she could stay at his place if she needed a place to stay. During the second incident, a couple of months later, Dr. Jabouin asked if she had found a place to stay yet. She said she had decided to stay in her apartment and had found a male roommate to share expenses with. Dr. Jabouin expressed concern and said that because the roommate was male, he might rape her and Dr. Jabouin suggested that if he had known she was looking for a roommate he would have moved in with her. This conversation also made her feel uncomfortable and scared and she reported this conversation to the daytime receptionist.

The final incident took place a couple of weeks later. The witness was ill that day, but reported for work because she knew she was the only staff available. She and the doctor worked alone. The doctor knew she was sick and that she had gone to the washroom several times during the day to vomit. At the end of her shift, he offered to give her some Gravol. She followed him from the reception area to his office, expecting him to give her some from the cabinet in his office. She testified that the doctor looked into the cabinet, told her there was no more oral Gravol but he could give her an injection. She began to roll up her sleeve. He told her to "put her pants down". She refused and returned to the reception area and asked for a prescription for the Gravol before she left. She reported this incident to the regular receptionist within a couple of days of the incident. The regular receptionist checked the cabinet and reported there were several boxes of Gravol. By mid-February, the witness left her employment with Dr. Jabouin.

The second witness was the regular day time receptionist. She testified that the first witness had told her of the incidents complained about and that she appeared upset by them.

CASE FOR THE DEFENSE
Since 1989 the doctor has had a general practice at a clinic in Ottawa where he treats a mixture of patients including middle class families, welfare recipients and drug and alcohol abusers. The doctor testified that he was surprised when the complainant called and told him she would not be returning to work and that he did not know she was dissatisfied with her employment. He testified that he recalled the conversations reported by her but that he remembered them differently. He said his concern was of a fatherly nature and that he did not believe she should be sharing an apartment with a young man. He denied asking intimate personal questions, admitted offering her a room at his house but testified he had been joking.

THE DECISION
The discipline panel decided that the complainant was not a patient and therefore dismissed the allegation of sexual impropriety. However, the panel was satisfied that Dr. Jabouin's conduct would be regarded as disgraceful, dishonourable or unprofessional and found him guilty of that allegation. The committee ordered that he receive a recorded reprimand and a three-month suspension of his certificate of registration. That suspension will be suspended if he takes a gender sensitivity counselling program and that periodic reports be made to the Registrar.

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It was alleged that the doctor was guilty of professional misconduct for engaging in sexual impropriety with a patient, for disgraceful, dishonourable or unprofessional conduct, for failure to maintain the standard of the profession, for verbal abuse of a patient, and for engaging in conduct unbecoming a physician. An allegation that the doctor was guilty of incompetence was withdrawn during the hearing.

The allegations arose from a single December 1991 visit of the complainant to a walk-in clinic where she was assessed by the doctor. The complainant, a woman with a life long history of sexual abuse, had been discharged several weeks earlier from the psychiatric service of a hospital in the same community Diagnoses of posttraumatic stress disorder and chronic depression had been made. Her visit to the walk-in-clinic was for the purpose of obtaining a referral to a psychiatrist in her neighbourhood.

Within days of the visit to the clinic, the patient was readmitted to the psychiatric ward of the community hospital suffering from what proved to be a brief psychotic reaction.

The complainant described her visit to the walk-in clinic. She testified that the doctor introduced himself as a "one of a kind' doctor and that she would "never meet another like him". As she recounted her history of sexual abuse, she said the doctor sat closely facing her, tapping her leg with an office file folder. She said she became uncomfortable and scared. She said that the doctor asked her if she enjoyed being raped at the age of 25 and if she missed having sex with her husband, from whom she was recently separated. She was advised to "wake up" and stop feeling sorry for herself, to stop "acting like a baby" and "put it on a shelf and forget about it" (referring to the sexual abuse). She was advised to "get off her ass, curl her hair, put some makeup on and get dressed up", and that she could probably be "not half bad looking". She testified that the interview lasted at least an hour and possibly an hour and a half, after which the doctor suggested she return to see him. She did not do this, fearing that "the next thing he would want would be sex".

On cross-examination, she described features of her post-traumatic stress disorder, such as flashbacks relating to her childhood sexual abuse during which she would "see" the face and body of her abuser, followed by a re-experiencing of the abuse. For roughly the previous four years she had also heard voices at the onset of a flashback. She denied hearing voices at the time of her visit to doctor at the clinic.

The doctor testified that the clinic visit lasted no longer that 30 minutes. He denied indicating that he was a "one of a kind' but did admit that his statement that he "took a different approach to mental illness than some doctors" might be interpreted in this fashion. He denied the other statements attributed to him by the complainant, although he did concede that yet another of the allegations could have been rooted in misinterpretation of a spontaneous remark which he did recall making. He confirmed that he did tap the complainants knee with a file folder, but said that his was meant as a gesture of support and sympathy

He testified that he was not qualified to do psychotherapy, did not hold himself out as a therapist and does not do psychotherapy The impression he got from the patient was that she had been in therapy for years, that she herself felt that it had been inappropriately and uselessly focussing on her past abuse, and that her main problem was that she was lonely, particularly since her marital separation. He had no clear idea why she wanted a psychiatric referral and saw no urgent need for one. He did not recognize that the patient was suffering from a thought disorder.

The Committee found the complainant to be clear and straightforward in her testimony, the doctor rambling and at times contradictory. In reaching its decision, however, the Committee was aided considerably by expert testimony from two psychiatrist-experts, one for the College and one for the defence. They based their testimony on available hospital and clinic records as well as testimony of both the complainant and the defendant.

Both were in agreement that the patient was suffering post-traumatic stress disorder. The "flashbacks", re-experiencing or re-living of vivid memories that characterize this condition may be triggered by a variety of stimuli. There was disagreement between the two witnesses as to whether the hospital record supported a contention that the patient additionally exhibited psychotic behaviour in the course of her hospital admission immediately prior to the walk-in clinic visit. From the testimony of these experts, the Committee concluded that such a brief psychotic reaction could arise spontaneously, without a recognizable stressor.

The Committee also concluded that individuals suffering from post-traumatic stress disorder are "hypersensitive" and 'hyper-alert" to potentially threatening stimuli. Such a state could cause benign events, words or gestures to be interpreted as threatening when in fact they were not. The psychiatric expert for the defence testified that it was quite possible - on the basis of post-traumatic stress disorder alone - that the complainant could leave the interview believing that the doctor had said what she alleges, when in fact those things had not been said.

The Committee agreed. It found that the precise words recalled by the complainant could have been part of a delusional state. While the College's psychiatric expert testified that he did not believe this to be the case, the Committee found that this possibility could not be ruled out.

The Committee, in concluding that the mental state of the complainant at the time of the walk-in clinic visit could have been significantly compromised by either a brief psychotic reaction or a delusional state arising from her post-traumatic stress disorder, found that the College had not met the necessary burden of proof - proof that is "clear and convincing and based upon cogent evidence'. It therefore found the doctor not guilty of the allegations of professional misconduct.