Ontario (College of Psychologists of Ontario) v. Pilowsky, 2019 ONCPD 4

Indexed as: Ontario (College of Psychologists of Ontario) v. Pilowsky, 2019 ONCPD 4

DISCIPLINE COMMITTEE OF THE COLLEGE OF PSYCHOLOGISTS OF ONTARIO

IN THE MATTER OF

The Regulated Health Professions Act, 1991, S.O. 1991, c.18

and the Psychology Act, 1991, S.O. 1991, c.38

Between:

The College of Psychologists of Ontario

• and -

Dr. Judith Pilowsky

DECISION AND REASONS FOR DECISION

Panel Members:

Ms. Christine DiZazzo

Chair (Professional Member of Council)

Dr. Marilyn Keyes

Member (Professional Member of Council)

Dr. Marjory Phillips

Member (Professional Member of Council)

Mr. Emad Hussain

Member (Public)

Mr. Cory Richman

Member (Public)

Hearing Date:

July 4, 2019

Decision Date:

July 4, 2019

Release of Written Reasons:

December 12, 2019

COUNSEL:

Mr. David Porter, Counsel to the College of Psychologists of Ontario

Mr. Ross Dunsmore, Counsel for the Member

Mr. Ian Roland, Counsel to the Discipline Committee of the College of Psychologists of Ontario

DECISION WITH RESPECT TO PROFESSIONAL MISCONDUCT AND REASONS FOR DECISION

INTRODUCTION

Pursuant to the Regulated Health Professions Act, 1991 (the RHPA”) and the Health Professions Procedural Code, as amended, a Panel of the Discipline Committee of the College of Psychologists (the “Panel”) held a hearing on July 4, 2019, to hear and determine specific allegations of professional misconduct against Dr. Judith Pilowsky, as noted in the Notice of Hearing dated December 7, 2018.

PRELIMINARY ORDER

Preliminary Order

Counsel for the College requested that the Panel order a publication ban with respect to the name of the client. There was no objection to this request. The Panel ordered a publication ban of the name of the client. The client will hereafter be referred to as Mr. M.

ALLEGATIONS

Allegations

In the Notice of Hearing filed at the hearing it is alleged that Dr. Pilowsky is guilty of professional misconduct under the RHPA and under the Psychology Act 1991, S.O. 1991, c. 38 (the “Act”) and the Regulations thereto, all as amended.

The particulars of the allegations set out in the Notice of Hearing are as follows:

1. You failed to maintain the standards of the profession contrary to section 1.2 of O.Reg. 801/93. In particular, you failed to maintain standards:

• 2.1 (General Conduct); and

• 12.1 (Compromised Objectivity, Competence or Effectiveness Due to Relational Factors); and

• 12.2 (Compromised Objectivity, Competence or Effectiveness Due to Other Factors)

2. You practiced the profession while you were in a conflict of interest contrary to section 1, paragraph10 of O. Reg. 801/93.

3. You engaged in conduct or performed an act, in the course of practicing the profession that, having regard to all of the circumstances, would reasonably be regarded by members as unprofessional, contrary to section 1.34 of O. Reg. 801.93.

By way of further particulars in the Notice of Hearing, it is alleged that:

a) You are the owner of Pilowsky Psychology Professional Corporation which provides psychological services (“PPPC”). You are the sole shareholder and director of the PPPC.

b) You were in a romantic relationship with Mr. M from approximately 2007- 2011 and you remained close friends after the romantic relationship ended.

c) On or around September 25, 2014, while you and Mr. M remained close friends, you completed an OCF-18 on behalf of Mr. M. You also prepared “Additional Comments” which included a section entitled “Initial Brief Psychological Interview/Intake Screening”.

d) By completing the OCF-18 and the Additional Comments, you provided psychological services to Mr. M.

e) On or around October 15, 2014, Dr. Stephen James prepared an OCF-18 on Mr. M’s behalf.

f) Dr. James was under your administrative supervision when he conducted the assessment of Mr. M.

g) Administrative supervision is a psychological service.

h) Dr. James produced a psychological assessment report dated November 11, 2014 on Mr. M’s behalf. The report was signed “Dr. Stephen H, James, C. Psych., Psychologist, on behalf of Pilowsky Psychology Professional Corporation”. The report was completed on PPPC letterhead, which includes your name, “Dr. J. Pilowsky”.

i) Between approximately 2009 and 2011, Mr. M. received remuneration for the services he received at your office.

At the hearing, Dr. Pilowsky admitted to the allegations of professional misconduct.

AGREED STATEMENT OF FACTS

Agreed Statement of Facts

The parties submitted an Agreed Statement of Facts into evidence at the hearing. It provided as follows:

1. Dr. Pilowsky obtained her certificate of registration from the College of Psychologists of Ontario (“the College”) authorizing autonomous practice in 1994. She practices clinical, counselling and rehabilitation psychology through Pilowsky Psychology Professional Corporation, of which she is the sole owner.

2. Dr. Pilowsky and Mr. M were romantically involved for about 10 years ending in 2009, and thereafter remained friends.

3. During and after the romantic relationship with Dr. Pilowsky, Mr. M was engaged in doing renovation work for Dr. Pilowsky at her office which was paid for by Pilowsky Psychology Professional Corporation. Mr. M received $10,700 from Pilowsky Psychology Professional Corporation in 2009, $3,000 in 2010 and $2,000 in 2011 for painting and cleaning.

4. On or about March 10, 2014, Mr. M was involved in a motor vehicle accident in relation to which he filed an insurance claim.

5. After the accident, in response to a request for a lawyer referral, Dr. Pilowsky referred Mr. M to Mr. Lofranco, to assist him in relation to the accident.

6. Upon request by Mr. M for a psychological assessment, on September 25, 2014 Dr. Pilowsky prepared a Treatment and Assessment Plan (OCF-18) for Mr. M.

7. The OCF-18 must be completed by a regulated health professional. It states that part 4 must be signed by a “health practitioner”.

8. In part 4 of the OCF-18 Dr. Pilowsky identified herself as being a “Psychologist” and listed her College registration number. Furthermore, she listed an ICD-10-CA code and lists an ICD diagnosis (Adjustment disorders) as well as the accompanying ICD code (F. 43.2).

9. Dr. Pilowsky included in the OCF-18 additional comments which included an “Initial Brief Psychological Interview/Intake Screening” in which she wrote:

“The purpose of this communication is to provide a description of the psychological symptoms that affect Mr. [M] after the accident”.

10. Dr. Pilowsky referred to her conclusions as her “psychological opinion” and that Mr. M’s symptoms did not fit the criteria of what is considered to be a minor injury according to the SABS Minor Injury Guidelines.

11. Also in these additional comments, Dr. Pilowsky noted: “My diagnostic impression is: Depression as well as Anxiety in the form of PTSD, with phobic symptoms in a motor vehicle.”

12. The College and Dr. Pilowsky agree that she provided a psychological opinion when she stated the following in the “additional comments” in the OCF-18:

“Rationale

Upon preliminary evaluation, it is my professional opinion that the patient’s experience of the subject accident, due to its severity and disruption to normal lifestyle, has resulted in a significant psychological toll. Moreover, as indicated, the patient’s psychological problems, secondary to the subject accident, are significant and do not fit the criteria for the MIG [Minor Injury Guidelines].

Therefore, I request authorization to conduct an assessment in order to ascertain whether or not psychological intervention would help this patient manage the psychological sequelae elicited by the accident. I recommend a psychological assessment as soon as possible to prevent his psychological cognitive and social functioning from deteriorating even further”.

13. The College and Dr. Pilowsky accept the opinion of the College’s expert, Dr. Ian Nicholson, where it is referred to in this Agreed Statement of Facts.

14. The College’s expert witness Dr. Ian Nicholson has opined on whether, in preparing the OCF-18 form, Dr. Pilowsky was providing a psychological service. He concludes:

“Thus, Dr. Pilowsky identifies herself as a psychologist in the provision of the service, describes the service as a psychological interview/screening, specifically identifies Mr. [M] as having psychological symptoms, and assigns a formal preliminary diagnosis.

Taken as a whole, this review would suggest that Dr. Pilowsky’s completion of part 4 of the OCF-18 was a psychological service provided by a psychologist”.

15. The College and Dr. Pilowsky agree that in completing the OCF-18 form in relation to Mr. M, Dr. Pilowsky practised the profession while in a conflict of interest contrary to Section 1, paragraph 10 of O. Reg. 801/93.

The Referral to Dr. Steven James for the Psychological Assessment

The Referral to Dr. Steven James for the Psychological Assessment

16. Dr. Pilowsky referred Mr. M to Dr. Steven James to conduct a psychological assessment. Dr. James was a full-time employee of the Ministry of Health, who did contract work from time to time for the Pilowsky Psychology Professional Corporation. The assessment is in a report dated November 11, 2014. Dr. James signed the report “Dr. Steven H. James C. Psych. Psychologist, on behalf of the Pilowsky Psychology Professional Corporation”.

17. Dr. James is authorized to practice clinical psychology. His authorized area of practice does not include rehabilitation psychology. He generally consulted with Dr. Pilowsky on his motor vehicle assessments, but did not consult with her on the assessment he did of Mr. M.

18. Dr. James was paid by the Pilowsky Psychology Professional Corporation to conduct the assessment of Mr. M and the billing to the insurer for this assessment was done by Dr. Pilowsky’s professional corporation. The file for the assessment was kept at the office of Pilowsky Psychology Professional Corporation. Dr. Nicholson concludes in his expert report that:

“[Dr. James] is, in effect, a contract employee of the Pilowsky Psychological [sic] Professional Corporation.”

19. Although Dr. Pilowsky believed at the time that she had maintained sufficient distance from Dr. James, Dr. Pilowsky now accepts Dr. Nicholson’s expert opinion that Dr. Pilowsky was in an administrative supervisory relationship with Dr. James. Dr. Nicholson states:

“Nonetheless, as a contract employee, whether Dr. James would continue to receive assessments, the number of assessments he would receive, the nature of the assessments he would receive, and the payments for the assessments were all determined by Dr. Pilowsky’s Pilowsky Psychological [sic] Professional Corporation. Thus, Dr. Pilowsky was in an administrative supervisory relationship over him as a result of her being the only shareholder of the corporation that employed Dr. James on a case-by-case basis”.

20. Although Dr. Pilowsky originally believed that completing the Treatment and Assessment Plan (OCF-18) for a friend was not indicative of a conflict of interest, Dr. Pilowsky now agrees that, in the totality of the circumstances in which Dr. Pilowsky had completed the OCF-18 form in relation to Mr. M, and referred him to Dr. James for the psychological assessment, she practised the profession while in a conflict of interest. As stated by Dr. Nicholson in his expert report:

“As noted above, Dr. Pilowsky has a conflict of interest with Mr. [M]. She was a friend of Mr. [M] for many years… She provided psychological services, including a diagnosis, directly to him through her completion of the OCF-18 and referred him to a psychologist that her corporation employed on a case-by-case basis. This conflict of interest would reasonably be seen as potentially impairing her objectivity in providing the psychological services and might, therefore, expose Mr. [M] to harm”.

21. Accordingly, on the basis of the facts agreed to herein, and supported by the expert opinion of Dr. Nicholson, the College and Dr. Pilowsky agree that Dr. Pilowsky, in the course of rendering professional services to Mr. M, failed to maintain the standards of the profession including Standards 2.1 (General Conduct), 12.1 (Compromised Objectivity, Competence or Effectiveness due to Relational Factors), and 12.2 (Compromised Objectivity, Competence or Effectiveness due to Other Factors) of the Standards of Professional Conduct (Effective September 1, 2005, Revised March 27, 2009) contrary to section 1, paragraph 2 of Ontario Regulation 801/93.

22. It is Dr. Nicholson’s opinion that:

“The completion of the psychological assessment including diagnosis with a friend, for the friend to potentially be funded further to receive psychological services, to then invoice the insurance company for those services that you provided for your friend, and then to invoice the insurance company for services of a contract employee through your corporation for the services you have then arranged to be provided to a friend, should be seen as . . . unprofessional activity”.

23. Accordingly, it is agreed by the College and Dr. Pilowsky that Dr. Pilowsky engaged in conduct or performed an act in the course of practising the profession that, having regard to all the circumstances would reasonably be regarded by members as unprofessional, contrary to Section 1, paragraph 34 of O. Reg. 801/93.

Based upon the Agreed Statement of Facts, and Dr. Pilowsky’s admission of professional misconduct, as alleged, the Panel found her guilty of professional misconduct as follows:

1. In the course of rendering professional services to (“Mr. M”), you failed to maintain the standards of the profession, including standards 2.1 (General Conduct), 12.1 (Compromised Objectivity, Competence or Effectiveness Due to Relational Factors), and 12.2 (Compromised Objectivity, Competence or Effectiveness Due to Other Factors) of the Standards of Professional Conduct (Effective September 1, 2005, Revised March 27, 2009), contrary to Section 1, paragraph 2 of Ontario Regulation 801/93 (“O. Reg. 801/93”).

2. In the course of rendering professional services to Mr. M, you practised the profession while in a conflict of interest, contrary to section 1, paragraph 10 of O. Reg. 801/93.

3. You engaged in conduct or performed an act, in the course of practising the profession that, having regard to all the circumstances, would reasonably be regarded by members as unprofessional, contrary to section 1, paragraph 34 of O. Reg. 801/93.

PENALTY AND REASONS FOR PENALTY

Penalty and Reasons for Penalty

Counsel for the College and counsel for Dr. Pilowsky made a joint submission with respect to penalty, whereby they filed a draft order with the Panel which contained the following proposed penalty order:

1. Dr. Pilowsky will attend before the Discipline Committee to be reprimanded; and

2. Dr. Pilowsky’s Certificate of Registration will be suspended, for a period of one month, which will be suspended on the conditions that on or before July 4, 2020, or such later date as is agreed to by the Registrar,

(i) Dr. Pilowsky attends and completes the PROBE course with an unconditional pass; and

(ii) Dr. Pilowsky thereafter attends the PROBE PLUS course and obtains a pass, and

(iii) Dr. Pilowsky provides the results of the PROBE and PROBE PLUS courses to the Registrar.

Counsel for the College and for Dr. Pilowsky submitted a letter from Dr. Clarissa Bush into evidence in support of the joint proposed penalty.

The Panel accepted the joint submissions of the parties and imposed the penalty sent out in the jointly proposed penalty order.

The Panel found the penalty to be appropriate in all the circumstances. The penalty recognizes the seriousness of Dr. Pilowsky’s professional misconduct and the need to bring home to her, to the profession, and to the public, that such misconduct cannot be tolerated.

The PROBE and PROBE PLUS courses constitute a course of instruction and study for Dr. Pilowsky focussed upon the areas in which she has been found to have committed professional misconduct. They involve a significant expense to her of more than $4,500(US), as well as a considerable commitment of time.

By means of the PROBE and PROBE PLUS courses, this rehabilitation process should assure that the member avoids finding herself in similar circumstances in the future, thereby protecting both the public and the reputation of the profession. To her credit, Dr. Pilowsky has already taken the PROBE course.

Dr. Pilowsky waived her right of appeal so that the Panel could deliver the oral reprimand to her immediately following the hearing on July 4, 2019. The hearing concluded following the oral delivery of the reprimand to the member.

Dated this 15th day of July, 2019

“Christine DiZazzo”

(Chair) Ms. Christine DiZazzo, C.Psych.Assoc.

“Marilyn Keyes”

Dr. Marilyn Keyes, C.Psych.

“Marjory Phillips”

Dr. Marjory Phillips, C.Psych.

“Emad Hussain”

Mr. Emad Hussain, Public Member

“Cory Richman”

Mr. Cory Richman, Public Member

TEXT OF REPRIMAND DELIVERED TO DR. PILOWSKY

Text of Reprimand Delivered to Dr. Pilowsky

Dr. Judith Pilowsky, you are here today in front of this panel of the College of Psychologists of Ontario Discipline Committee to be reprimanded on your conduct as a psychologist with respect to the allegations to which you pleaded guilty today.

We trust that you understand the seriousness of your behaviour. You practiced the profession while you were in a conflict of interest, and engaged in unprofessional behaviour, and failed to maintain the standards of the profession.

We hope you understand the impact your behaviour has had on the trust placed in our profession by members of the public, including insurers.

Regardless of your mistaken belief that you sufficiently distanced yourself from both Mr. M. and Dr. James, you now understand that your actions put you in a conflict of interest and that you failed to maintain the standards of the profession.

Dr. Pilowsky, to your credit you have accepted responsibility for your actions and agreed to the joint submission of penalty without the need for a lengthy hearing. We are pleased that you have taken the initiative to complete the first PROBE course and assume the financial burden of the programs. This demonstrates your willingness to learn from this experience to ensure that in the future you will not engage in any actions that violate the standards of the profession.

This penalty will restore confidence to the public that unprofessional behaviour of this type will not be tolerated.

This is not an official transcript