College of Nurses of Ontario v. Rojas-Leal, 2017 ONCNO 149418

Discipline Committee of the College of Nurses of Ontario

PANEL: SUSAN ROGER, RN Chairperson DAWN CUTLER, RN Member RENATE DAVIDSON Public Member DAVID EDWARDS, RPN Member ASHLEIGH MOLLOY Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO MEGAN SHORTREED for College of Nurses of Ontario

• and -

MIGUEL A. ROJAS-LEAL Registration No. 06292674 ROBERT K. STEPHENSON for Miguel A. Rojas-Leal

LONNY J. ROSEN for the Complainant

LUISA RITACCA Independent Legal Counsel

Heard: November 8-10, 2017

DECISION AND REASONS ON MOTION

This matter came on for hearing before a Panel of the Discipline Committee on November 8, 2017 at the College of Nurses of Ontario (the “College”) at Toronto.

Miguel A. Rojas-Leal (the “Member”) was not present, but represented by counsel. Counsel confirmed that the Member was content for the matter to proceed in his absence.

The Panel received the Notice of Hearing, dated September 5, 2017. The allegations against the Member are as follows:

IT IS ALLEGED THAT:

1. You have committed an act of professional misconduct as provided by subsection 51(1)(b.1) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, in that while working as a Registered Nurse with Toronto Western Hospital in Toronto, Ontario (the “Hospital”), you sexually abused a client, as follows:

a. on or about May 28, 2012, you engaged in touching of a sexual nature, or behaviour or remarks of a sexual nature, toward [the Complainant] including:

i. touching [the Complainant’s] genitals when there was no clinical purpose to do so; and/or

ii. inviting [the Complainant] to have a drink with you; and/or

2. You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(1) of Ontario Regulation 799/93, in that while working as a Registered Nurse at the Hospital, you contravened a standard of practice of the profession or failed to meet the standards of practice of the profession in that:

a. on or about May 28, 2012, you breached the therapeutic boundaries of the nurse-client relationship with [the Complainant] by:

i. touching [the Complainant’s] genitals when there was no clinical purpose to do so; and/or

ii. inviting [the Complainant] to have a drink with you; and/or

3. You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(37) of Ontario Regulation 799/93, in that while employed as a Registered Nurse at the Hospital, you engaged in conduct or performed an act, relevant to the practice of nursing, that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, as follows:

a. on or about May 28, 2012, you engaged in touching of a sexual nature, or behaviour or remarks of a sexual nature, toward [the Complainant] including:

i. touching [the Complainant’s] genitals when there was no clinical purpose to do so; and/or

ii. inviting [the Complainant] to have a drink with you; and/or

b. on or about May 28, 2012, you breached the therapeutic boundaries of the nurse-client relationship with [the Complainant] by:

i. touching [the Complainant’s] genitals when there was no clinical purpose to do so; and/or

ii. inviting [the Complainant] to have a drink with you.

The Member’s counsel entered a plea of not guilty on the Member’s behalf.

Publication Ban

At the outset of the hearing, the College brought a motion pursuant to s.45(3) of the Health Professions Procedural Code of the Nursing Act, 1991, for an order preventing the public disclosure of the name and any identifying information of the Complainant, including a ban on publication or broadcasting of those matters referred to in this Discipline hearing.

The Panel considered the submissions of College counsel and counsel for the Complainant, and on being advised that counsel for the Member did not oppose the request, granted the request and made an order preventing the public disclosure of the name and any identifying information of the Complainant, including a ban on publication or broadcasting of those matters referred to in the hearing.

Preliminary Motion

Following the receipt of the Notice of Hearing, the Panel heard the Member’s motion for third party production of certain health care records of the Complainant, [ ].

In particular, the Member seeks production of the Complainant’s health care records for the following conditions:

(a) bipolar and/or bipolar-type schizoaffective disorder;

(b) sexual abuse; and/or

(c) seizures

Briefly, the position of the Member is that there is a reasonable possibility that the records sought contain information which will be probative of issues at the hearing, including the reliability of the Complainant’s evidence and his credibility. The Member argues that he has met the threshold of “likely relevance” for the Panel to review the records in question.

The Complainant opposes the Member’s motion on the basis that his records are personal, private and confidential, and not relevant to the determination of an issue in this matter.

The College, in accordance with its public interest mandate, urges the Panel to proceed cautiously in reviewing the Member’s request and in balancing the privacy interests of the Complainant over the records at issue. The College argues that on the evidence filed, the Member has not established likely relevance.

Decision

For the reasons that follow, the Panel orders the Complainant to produce (or cause to be produced) to the Panel the records from [Physician A] relating to the Complainant for the period between May 28^th, 2012 and September 6^th, 2016.

The Member’s request for production of any and all other records is denied.

Evidence filed on the Motion

Original Letter of Complaint to the College of Nurses

On May 13^th, 2016, the Complainant delivered a letter of complaint to the College, wherein he described an alleged incident which occurred between him and the Member on May 28^th, 2012.

In his letter, the Complainant states that he attended [the Facility] in [ ], Ontario for follow-up treatment for injuries sustained after falling in a sleepwalking incident, two days earlier. He was treated in [ ] and subsequently released.

After returning home to Toronto the Complainant was asked by a friend if he had received a tetanus shot while in [ ]. His friend urged the Complainant to go to the hospital when it was discovered that it had been approximately 20 years since his last tetanus shot.

On May 28^th, 2012, the Complainant walked into Toronto Western Hospital and was assessed by a triage nurse (not the Member). The Complainant explains in his letter that his temperature and blood pressure were taken by the triage nurse. That nurse also asked if the Complainant was suffering from a persistent or recurring headache. The Complainant replied that his head had been throbbing, and so as a precaution the triage nurse fitted him with an immobilizing medical collar.

After a short period of time waiting, the Complainant describes that he was moved to a treating room by another nurse (again, not the Member), who advised him to lie on his back. At this point, the Complainant recalls that the Member, as the attending nurse, took over the Complainant’s care.

The Complainant states that the Member advised that blood and urine samples were required. Subsequently, a blood sample was taken. The Complainant states that he asked the Member for a container so that he could take it to a nearby washroom to provide the urine sample. The Complainant reports that the Member urged him not to move and that instead he would have to twist his body to the side and urinate in a plastic urinal that the Member held for him.

Prior to obtaining the sample, the Complainant states that the Member insisted on cleaning the Complainant’s groin area to ensure the urine sample would be clean. In his complaint letter, the Complainant details how the Member allegedly cleaned him both before and after the collection of the sample. The Complainant writes in the complaint letter that, “The procedure was surreal and, during that time, I felt absolutely no sensation, as if I had divorced myself from what was being done to my own body.” Once the sample was taken the Member left the room.

The Complainant goes on to report that eventually the attending physician entered the room and proceeded to ask what brought him to the Emergency Department. The Complainant states that the physician asked him if he was there for a tetanus shot before “all the words were out of my mouth...” It was at this point the physician directed the Member to remove the medical collar and the Complainant was then freely able to sit up. The physician performed an examination of the Complainant and determined that no further treatment was required.

It appears that a tetanus shot was ordered but the Complainant reports in his letter that he cannot recall whether it was the physician or the Member who administered the shot.

The Complainant alleges that prior to leaving the Emergency Department, the Member told the Complainant that the dressing on his left bicep needed to be redressed. The Complainant agreed to this as the bandage had been removed so the physician could inspect the wound. After the dressing was re-bandaged, the Complainant alleges that the Member said, “OK. Maybe when you’ve healed and are feeling a little better, you can come back and we can go for a drink.” The Complainant describes feeling embarrassed by this comment and having been able to respond by simply saying, “Ohhhhhhkay.”

After leaving the Emergency Department, the Complainant describes that he was struck by what had happened and thought, “Things like this only happen to a complete dumbass like me.”

The Complainant concludes his complaint letter with the following statement: “What happened that night in the Emergency Department of Toronto Western Hospital was wrong on every level. I was violated. The attending nurse had sexually assaulted me.”

Interview Summary

Subsequent to delivering his complaint letter, the Complainant was interviewed by College Counsel on July 19^th, 2016. The interview summary was included in the evidence filed on the motion.

Complainant’s Background & Incident Background

In his interview, the Complainant explained that he is unemployed and that receives CPP-D. He also advised that he suffers from bipolar-type schizoaffective disorder.

The Complainant provided more detail on the specific cuts and bruises he sustained during his fall and advised that the cuts to his left bicep did not require stitches and that he also suffered some abrasions to his knees.

The Complainant further indicated that on the car ride back to Toronto from [ ], he had sat in the backseat which he said was cramped and caused him to stiffen up and have back pain.

The Events of May 28, 2012

In his interview with the College, the Complainant did not recall specifics as to what he told the emergency room staff as to where he was experiencing pain. Upon review of his emergency room medical records, the Complainant denied using the words “flank pain”, as written in the records, as it was not a term he would normally use. The Complainant did not recall telling staff he had abdominal pain and did not report that he had flank pain that was radiating to his groin.

The Complainant did acknowledge in the interview that it was likely that he had mentioned “back pain” to the doctor and the attending nurse.

The Complainant had no recollection of who escorted him from triage to the treatment room, but stated it was not the Member. The Complainant could not recall if he was hooked up to an ECG machine during his visit. Further, the Complainant could not remember whether a “finger clamp” was placed on him during triage.

The Complainant advised that other than during the physician’s examination, no one else was in the room during his interactions between himself and the Member.

In describing the actual incident of alleged assault, the Complainant provided even greater detail than previously reported in his complaint letter. He explained how the Member cleaned his groin area both before and after the collection of the urine sample. The interview report states, “The Complainant cannot be precise about how long this went on for, in terms of seconds or minutes, but it seemed to go on for a lengthy amount of time.”

In his interview, the Complainant confirmed his interaction with the physician, who ordered that the “C collar” could be removed and further confirmed the comment made by the Member after he re-bandaged the Complainant’s shoulder.

The Aftermath

In his interview, the Complainant provided information about events that occurred after May 28^th, 2012 and in particular the events that triggered his decision to come forward with his complaint.

The Complainant explained that an online Facebook discussion which took place in January 2016 was a “triggering event” for him. The Complainant described this event as a discussion about not using certain phrases in the [ ] community. The Complainant wrote in this Facebook discussion about his distaste for the phrases, “[ ] rape” and “eat a bag of dicks.” After expressing his feelings about these phrases the Complainant received a private message on Facebook asking if he was serious. He responded that he was serious and that this conclusion came after “a life time of narrowly escaping the clutch of perverts.” This discussion had upset the Complainant and upon reflection he had remembered the incident of May 2012 and that he had not dealt with what he believes is sexual assault.

The Complainant also advised College counsel that he was previously assaulted on two other separate occasions but was unable to deal with those assaults as one assailant was deceased and the other might be as well. It was at this point in his reflection that the Complainant looked up the College of Nurses of Ontario complaints process, requested his health records and began drafting his complaint letter.

Emergency Department Records

The Panel received the emergency department records from Toronto Western Hospital dated May 28^th, 2012 related to the Complainant’s visit, as well as a further fact sheet signed by the emergency room attending physician, [Physician B] dated June 21^st, 2016.

The emergency department records show that the Complainant received a triage assessment at 21:27hrs and was assigned a triage score of 3 (Urgent).

In the Primary Nurse Assessment form, the Member records that the Complainant was “alert and oriented” and that a urine-dip was completed. The pain assessment is recorded as “right flank pain radiating to groin area” and a skin assessment reports bruising and abrasions to the left shoulder, right lower abdomen and abrasions to both knees. Past medical history on the nursing assessment shows asthma and bipolar. The bottom of the Primary Nurse Assessment form shows a checkmark beside “Blood work done as per Medical Directives”. An accompanying neurological observation record was also completed by the Member with assessment time of 22:13hrs.

The Panel reviewed the attending physician’s notes, which confirm that the physician assessed the Complainant at 22:30hrs. [Physician B] noted “sleepwalker” and “seizures” on the assessment form, along with “ECG NSR”, which College counsel advised meant “ECG – Normal Sinus Rhythm.” The assessment form shows that a tetanus shot was ordered as well as oral medications, however the Panel notes there is no documentation as to who administered these medications.

Expert Reports

The Discipline Panel reviewed reports from two Expert Witnesses. The Member relied on the expert opinion of Dr. J. Joel Jeffries, and the College relied on the opinion of Dr. Joel Sadavoy.

Evidence of Dr. Jeffries

Dr. Jeffries is a psychiatrist presently working at the Centre for Addictions and Mental Health and as an associate professor of psychiatry. His curriculum vitae revealed an extensive history in the field of psychiatry in both clinical and academic sectors. In his report dated April 26^th, 2017, Dr. Jeffries explains that he has “extensive experience in dealing with people with psychosis including both schizophrenia and bipolar disorder.” (“Report #1”)

In his Report #1, Dr. Jeffries explains that perceptions of reality and memories are unreliable in all people, but “people with psychosis are particularly at risk.” Dr. Jeffries concludes that the interaction with the Member as described by the Complainant is likely a false memory, given the Complainant’s mental health history and possible psychosis. Dr. Jeffries concludes that psychosis can affect the Complainant’s perception of the experience of any alleged sexual abuse.

Dr. Jeffries further concludes in Report #1 that “it would be absolutely necessary to have access to his (the Complainant’s) previous records with as much detail as possible. One would be looking for evidence of prior misinterpretations of sexual assault and of other events.”

Dr. Jeffries prepared a follow-up report, dated August 25^th, 2017, in response to additional information he received from the Member’s counsel. (Report #2). In his original report, Dr. Jeffries opined that the counselling the Complainant received in 2016 could have influenced his memory. Dr. Jeffries was subsequently advised that the Complainant filed his original complaint with the College before receiving any counselling on the matter. As a result, Dr. Jeffries retracted his opinion with respect to the counselling, but remained firm that receipt of the medical reports from the Complainant’s doctor during the time in which he submitted his complaint to the College would be relevant as these records could assist in understanding the Complainant’s behaviour in relation to the incident.

In Report #2, Dr. Jeffries provided more detail concerning false memory. Dr. Jeffries explained his concern about the “lack of logical continuity in (the Complainant’s) report and the somewhat bizarre description of how he came to the conclusion that he had been sexually abused...” Dr. Jeffries stood by his original opinion that the incident was a matter of false memory and that the records being sought were necessary.

Finally, Dr. Jeffries was asked to comment on the fact that the ER doctor had noted a “history of seizures” in the Complainant’s records at the time of the alleged incident and on the fact that the Complainant’s denied any such seizure history. Dr. Jeffries concluded that this seemingly inconsistent information calls into question the Complainant’s credibility and raises an issue as to how much one can rely upon what the Complainant now says.

Evidence of Dr. Sadavoy

Dr. Sadavoy is Senior Clinician Scientist, Lunenfeld-Tanenbaum Research Institute and the RCPSC Founder for Geriatric Psychiatry. He has approximately 48-years working in psychiatry in both academic and clinical practice.

The College asked Dr. Sadavoy to prepare a written report setting out his opinion on the psychiatric issues relevant to the Member’s motion for the Complainant’s records. In his report, dated September 28^th, 2017, Dr. Sadavoy concluded that on the medical evidence available to him (i.e. the Complainant’s Emergency Room Chart), he could not conclude anything about the Complainant’s mental health history, diagnosis, symptoms or stability. Dr. Sadavoy further explained there was no evidence in the records available to him that directed one to believe that the Complainant was actively having psychiatric symptoms at the time of the alleged incident with the Member. Finally, Dr. Sadavoy concluded that in his view there would be no additional record or data available which would allow him to opine on the Complainant’s psychiatric state at the time of the alleged incident.

Dr. Sadavoy reported that a diagnosis of schizoaffective disorder and/or bi-polar disorder alone does not allow for the conclusion that the Complainant’s memory or perception at a given point in time was impacted by his disorders. Dr. Sadavoy explained that “Clinical conclusions about perception and memory function in an individual require contemporaneous evaluation of their symptoms and function.”

With respect to the Complainant’s symptomology, perception or memory at the time of the alleged incident with the Member, Dr. Sadavoy opined that without all the relevant contemporaneous information, it is not possible to draw any conclusions.

The College asked Dr. Sadavoy to comment on the fact that the Emergency Room record makes note of a “history of seizures” which is denied by the Complainant. With respect to the seizure issues, Dr. Sadavoy concluded that, “Given the information at hand, it is not possible to conclude that the Complainant ever suffered from seizures and any conclusions with regard to seizures remain purely conjectural.”

The Law

The Member’s motion is governed by Rule 3 of the Discipline Committee Rules and section 12 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S. 22 (“SPPA”). Rule 3 provides in part that a motion relating to the production of documents from a third party by summons shall not be heard until the commencement of the hearing and that notice of such motion shall be provided to the person possessing the documents and to any other person having a significant interest, including privacy interest, in the documents.

Section 12 of the SPPA provides that the Member may seek production of information or documents in the possession of third parties that are relevant to the subject-matter of the proceeding and admissible at the hearing.

The parties generally agree that in considering the Member’s request, the Panel must be governed by the two-stage test for third party production set out by the Supreme Court of Canada in R. v. O’Connor, [1995] 4 SCR 411 (the “O’Connor Test”). In the first stage, the Member must establish that the records sought are “likely relevant” to an issue in the proceeding. If likely relevance is proven, the records will be produced to the Panel, who will then decide as the second stage whether any of the records are “truly relevant” to the matters at issue. If true relevance is established, the Panel can order production of those records to the parties.

The Complainant argues that in addition to considering “likely relevance” at the first stage of the test, the Panel must also consider whether production of the records is “necessary in the interest of justice”. The Complainant relies on the Supreme Court of Canada Decision in R. v. Mills, [1999] 3 S.C.R. 668 and the Divisional Court decision in The College of Physicians and Surgeons of Ontario v Dr Henry Shiu-Yuen Au, 2005 ON SCDC 2037 in support of his position. The Complainant argues that this additional consideration requires the Panel to balance the right of the Member to make full answer and defence against the privacy interest of the Complainant in his medical care records.

In further support of his position, the Complainant submits that the Panel ought to be guided by the amendments made through Bill 87, Protecting Patients Act¹, which is set to amend portions of the Regulated Health Professions Act (the “RHPA”). The legislative amendments are intended to strengthen the sexual abuse provisions of the RHPA; enhance the supports provided to complainants throughout the colleges’ complaints, investigations and discipline process; and to better encourage the reporting of incidents of a sexual nature by regulated health professionals. One of the key amendments is the introduction of s 42.2 to the Health Professions Procedural Code (“the Code”) in Schedule 2 of the RHPA, which sets out a framework for the production of private third party records motions in cases involving allegations of a “sexual nature”. The framework in s 42.2 incorporates the main substantive features of the Mills regime with certain modifications to account for the fact that the framework will be applied in regulatory proceedings.²

Although s. 42.2 is not yet in force, it is the Complainant’s submission that Panel should be guided by s 42.2 and the principles articulated in Mills when determining whether to order production of the third party records in this case.

Submissions of the Parties on the Application of the Law to the Facts

(1) Records Relating to Treatment/Care Received for Sexual Abuse

Member’s Position

The Panel heard extensive submissions from the Member’s counsel as to the likely relevance of the records relating to care and treatment the Complainant received for sexual abuse. Counsel argued that as the Member is accused of sexual assault, the penalty associated would put his career “on the line” if the Panel found the allegations to be true. Counsel further argued that as there were no other witnesses present during the alleged incident and given the lack of information surrounding the Complainant’s previous two incidents of sexual abuse, records relating to any treatment the Complainant might have received in respect of any incidents of sexual abuse are likely relevant to the Member’s ability to make full answer and defence.

The Member’s counsel reminded the Panel of Dr. Jeffries’ conclusion that, “(i)t would be absolutely necessary to have access to his previous records with as much detail as possible. One would be looking for evidence of prior misinterpretations of sexual assault and of other events.”

Records of treatment from [the Counsellor]

Through his counsel, the Complainant confirmed that he received treatment from [the Counsellor], a counsellor at the [ ] Community Health Centre for sexual abuse.

The Member’s counsel argued that any reports available from the Complainant’s counsellor, [the Counsellor] are relevant as they have impeachment value and may assist to understand whether there should be a concern of false memories. Her records may also shed light on the sequence of events and how and why the Complainant moved forward with his complaint when he did.

Records of treatment from [Physician A]

The Complainant’s counsel confirmed that the Complainant received treatment from his psychiatrist, [Physician A] for approximately 13-years. He further confirmed that the Complainant did not seek any care for issues or concerns from any incident of sexual abuse prior to January 2016, but that he did speak with [Physician A] about this briefly sometime in 2016.

The Member’s counsel argued that [Physician A’s] records (in their entirety) were likely relevant to the issue of sexual abuse and that they were required for the Member to make full answer and defence.

College’s Position

College counsel reminded the Panel that the College’s responsibility is to serve and protect the public, which includes the duty to protect those who come forward to complain about a member, especially those who allege sexual misconduct has occurred.

Counsel acknowledged the critical importance of balancing the Complainant’s privacy with the Member’s right to make full answer and defence. However, with respect to sexual abuse allegations, counsel urged the Panel to cautiously consider the relevance of the motion and to make the decision based on the evidence available and not on mere speculation or by relying on myths or stereotypes of how victims of sexual abuse “should” behave.

The College argued that the parties already have all of the medical records that are relevant to the events that took place on May 28^th, 2012. The Member is free to cross-examine the Complainant as to his ability to recall the events without the need for reviewing the Complainant’s health care records with respect to sexual abuse.

Complainant’s Position

Counsel for the Complainant echoed the privacy concerns raised by the College and added that the Panel should be concerned about the Complainant’s right to safeguard his records, as well as every other patient’s right to come forward in the face of sexual abuse without the fear of having to share their entire health history.

Counsel directed the Panel to s. 278.3(4)(g) of the Criminal Code which provides, in part, that it is improper to seek production of private mental health records based only on the assertion that those records may contain allegations of sexual abuse of the Complainant by a person other than the Member. In the absences of other, corroborating evidence, the Member cannot establish that the records sought are “likely relevant”.

With this, Counsel advised the Panel that any records relating to other incidents of sexual abuse cannot be relied upon to form the basis of the Panel’s decision on this motion without more evidence of likely relevance.

Counsel for the Complainant submitted that with regard to the Member’s request for records relating to sexual abuse, there is not sufficient evidence before the Panel to meet the threshold of likely relevance. Counsel reminded the Panel that the evidence confirms that the Complainant did not even seek treatment for sexual abuse until 2016 and did not speak with his counsellor until after he filed his complaint with the College. This further calls into question the likely relevance of such records.

(2) Records Relating to Treatment/Care Received for Seizures

Member’s Position

Counsel for the Member argued that both experts acknowledged that seizures can affect a person’s memory. Dr. Jeffries opined that the Complainant’s description of his reaction to the alleged cleaning of his by the Member, does not appear to constitute an “absence seizure” but is typical of an episode of dissociation. Given this conclusion, counsel argued that records relating to the treatment and/or care received for seizures is likely relevant to the reliability of the Complainant’s recollection of the events on May 28^th, 2012, as well as to the “trustworthiness” of the Complainant’s memory.

Counsel argued that the College’s expert did not adequately explain why he did not believe that the Complainant was not suffering from an absence seizure or a dissociated state in May 2012.

College’s Position

College counsel disagreed with the Member’s position that the evidence in any way supports the suggestion that the Complainant was suffering from a seizure or a dissociative state during his hospital visit in May 2012. The medical records simply do not support any such conclusion. There are no records before this Panel to suggest that the Complainant was in any such seizure or disassociated state. While there is a note in [Physician B’s] emergency room record of a “history of seizures”, College Counsel submitted that this notation was likely an error arising from the fact that one of the Complainant’s medications is also used to treat seizures. The Complainant’s evidence is that he has never suffered from seizures. That evidence ought to be preferred over the notation in the emergency room record.

In the absence of evidence of a history of seizures, the College argued that the Member’s request for records relating to the treatment and/or care of seizures is without merit.

Complainant’s Position

The Complainant’s counsel reminded the Panel that the Complainant has never been diagnosed with or treated for seizures, and therefore there are no related health records.

Counsel further argued that even if the Panel was unsure with respect to the existence of any such records, it was Dr. Jeffries’ opinion that unless the Complainant was having a seizure at the time of the sexual abuse, it is unlikely that it would impact perception or memory. There is no evidence in the record that the Complainant was having a seizure during his visit to the hospital in May 2012, as such the Member’s request should be denied.

(3) Records Relating to Treatment/Care Received for bipolar and/or bipolar-type schizoaffective disorder

Member’s Position

Counsel for the Member requests all health records relating to the Complainant’s treatment/care he has received for bipolar and/or bipolar type schizoaffective disorder. Counsel argued that these records are relevant as they will shed light on the Complainant’s medication regime, his compliance with treatment, whether any lack of compliance impacted on his treatment and whether his condition or his treatment regime may impact on the reliability and trustworthiness of his memory and his ability to recall. Further, counsel argued that the records may show what state the Complainant was in in May 2012 during the alleged incident and in May 2016, when he filed his complaint with the College. Records of relapse, ongoing psychosis and residual symptoms, may also shed light on the Complainant’s history of suffering through “triggering events”.

The Complainant has acknowledged that he suffers from a mental health disorder and that he has been treated since 1996. He acknowledged that he has been on anti-psychotic medication, and has had multiple hospital admissions and ER visits for mental health issues.

Counsel for the Member submitted that the Panel should order production of all relevant medical records in this category given their importance to the Member’s right to make full answer and defence.

College’s Position

College Counsel acknowledged that the Complainant has a history of mental illness and cites records showing varying diagnoses of “bi-polar” and “bi-polar schizoaffective disorder”.

Counsel for the College reviewed the Complainant’s ER record with the Panel and pointed to the fact that the Member’s assessment on the May 28^th, 2012 noted the Complainant was “Alert and Oriented” and that there was no indication on the chart that he was experiencing any psychiatric symptoms at the time of the incident.

Counsel reminded the Panel that the law makes clear that the mere fact that a complainant has a psychiatric history and records exist cannot be taken as indicative of the potential relevance of those records, or of the potential unreliability of his memory and perception.

Complainant’s Position

Counsel for the Complainant submits that the Member has failed to prove that the requested records are likely relevant to the Member’s defence or to the Complainant’s reliability as a witness. Counsel argued that to suggest, as Dr. Jeffries’ does, that the Complainant’s perception and memories may be distorted or altered simply because of his bi-polar or bi-polar type schizoaffective disorder is a bare assertion which cannot be relied upon to advance the Member’s position. Counsel argued that there must be specific evidence particular to the facts of the case showing that the records are likely relevant to the Complainant’s reliability as a witness.

Independent Legal Counsel Advice

The Panel requested the advice of their Independent Legal Counsel (“ILC”) in order to provide clarification on the matters at hand and present an impartial view of the preliminary motion. ILC reminded the Panel of the two-stage legal test set out in R v. O’Connor to determine likely relevance of the Complainant’s personal health records.

In considering likely relevance, ILC encouraged the Panel to do the following:

1. Take time to look at what other court and tribunals have done

2. Look at the facts

3. Take guidance on courts and tribunals to see how they met the threshold of likely relevance

4. Ensure that the decision balances the Members right to full answer in defence and the Complainant’s rights to privacy.

Decision

As set out above, the onus on the motion was on the Member to establish that the records sought were “likely relevant” to an issue in the hearing. Having considered the evidence and the submissions of the parties, the Panel allows the motion, in part, and orders production of the following records which will be reviewed by the Panel for relevance:

Records from [Physician A] from May 28^th, 2012 to September 6^th, 2016.

Reasons for Decision

The Panel was satisfied with the Member’s argument that the information contained within [Physician A’s] records for the limited period of time between May 2012 and September 2016 may be relevant in that the Complainant’s treatment history with [Physician A] overlaps with the timeline of relevant events at issue here. The records sought are for a period of time that includes the Complainant’s alleged interaction with the Member on May 28^th, 2012 and the Facebook discussion in January 2016, which allegedly acted as a “trigger” for the Complainant to remember and ultimately decided to file a complaint about the Member.

Secondly, the Panel agrees that the Member has little information available to him to make full answer in defence, given that there were no other witnesses to the alleged incident and given that there appears to be some gaps in the Complainant’s memory with respect to his visit to the emergency room in May 2012.

Having determined that these records are “likely relevant”, the Panel makes no final decision with regard to actual relevance or whether the records (or any part of them) ought to be disclosed to the parties.

Counselling Records from [the Counsellor]

The Panel finds that the Member has not established that the counselling records from [the Counsellor] are likely relevant in the circumstances. The mere fact that the Complainant may have received counselling in relation to a sexual assault does not mean that those records are likely relevant to the Member’s defence. There was insufficient evidence before the Panel to explain why counselling records, which post-date the alleged incident and the complaint letter, would be relevant to the Member’s case.

As such, the Panel denies the Member’s request for production of the counselling records from Ms. Tsang.

The Panel finds that the Member has not provided sufficient evidence to support a request for accessing Mental Health treatment records from the office of [Physician C]. The Panel was not satisfied that records dating back 10 years before the alleged incident occurred would be likely relevant on the merits of the case.

As per Motion Exhibit A “Status of Requests for Records”, a response was received from the clinic advising the Member that that the Complainant was not a patient of [Physician D]. Therefore the Panel cannot and does not make an order to access those records.

The Panel finds that the Member has not provided sufficient evidence to support a request for accessing Mental Health treatment records from the office of [Physician E]. The Panel was not satisfied that records dating back over 10 years before the alleged incident occurred would be likely relevant.

The Panel finds that the Member has not provided sufficient evidence to support a request for accessing Mental Health treatment records from the office of [Physician F]. The Panel was not moved that ordering records dating back over 10 years prior to the alleged incident would be considered likely relevant.

The Panel was not provided with any clear evidence which [Physician G] provided treatment to the Complainant. Evidence reviewed by the Panel shows that the Complainant was never a patient of the Doctor that was contacted. Therefore the Panel cannot make an order requesting access to these records.

The Panel finds that the Member has not provided sufficient evidence to support a request for accessing treatment records from [ ] Hospital. Given the Panel was not provided sufficient evidence to conclude that records dating back prior to the alleged incident would be considered likely relevant, the Panel will not order disclosure of these records.

The Panel finds that the Member has not provided sufficient evidence to support a request for accessing records from [ ]. The Panel was not satisfied that records dating back 10 years before the alleged incident would be likely relevant.

The Panel reviewed documents from [ ] Hospital advising the Member that the records have been destroyed. Therefore, the Panel cannot make a production order.

The Panel finds that the Member has not provided sufficient evidence to support a request for accessing Mental Health treatment records from the office of [Physician H]. The Panel was not satisfied that ordering records dating back over 10 years prior to the alleged incident would be considered likely relevant.

The Panel finds that the Member has not provided sufficient evidence to support a request for accessing records from [ ] Health Centre. The Panel was not satisfied that records dating back 10 years before the alleged incident would be likely relevant.

Records relating to treatment of seizures

The Panel is unable to make an order for the production of health records relating to treatment of seizures as no records exist. In any event, the Panel is not satisfied on the evidence before it that the Complainant’s seizure history is relevant or even likely relevant to the issues in this case. The medical records before the Panel do not suggest that the Member was suffering from a seizure or the effects of a seizure at the time of the alleged incident.

I, Susan Roger, sign this decision and reasons for the decision as Chairperson of this Discipline Panel and on behalf of the members of the Discipline Panel.

Footnotes

1. 1Protecting Patients Act, 2017, 2^nd Sess, 41^st Leg. Ontario, 2017, c. 11, Royal Assent rec’d May 30, 2017, Schedule 5, s. 18
2. 2Section 42.2(3), which lists a set of factors to consider when assessing whether production is in the interest of justice. This differs slightly from the analogous list of factors in s 278.5(2) of the Criminal Code.