COURT FILE NO.: 766/02

DATE: 20030710

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

THEN, SOMERS and GREER JJ.

B E T W E E N:

COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO

Respondent

• and -

DR. PAUL MICHAEL PORTER

Appellant

Donald Posluns for the Respondent

J. Thomas Curry and Nina Bombier, for the Appellant

HEARD: April 28 and 29, 2003

SOMERS J.

1The appellant, a 53-year-old psychiatrist, appeals against the decision of the discipline committee of the College of Physicians and Surgeons of Ontario made September 19, 2002, and from the penalty subsequently imposed November 29, 2002. The hearings extended over a period of approximately 14 months.

2The allegations made against Dr. Porter, as initially framed were:

(a) sexually abusing two patients;

(b) engaging in conduct unbecoming of a physician;

(c) failing to maintain the standard of practice of the profession;

(d) giving information concerning the condition of a patient or any services rendered to a patient to a person other than the patient or his or her authorized representative, except with the consent of the patient or his or her authorized representative or as required by law; and

(e) engaging in an act or omission relevant to the practice of medicine and having regard to all the circumstances reasonably be regarded by members as disgraceful, dishonorable and unprofessional.

3In addition, the complaints committee of the College referred to the discipline committee the allegation that Dr. Porter, a member of the College, was incompetent as defined by section 52 (1) of the Code (Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18). Specifically, they charged that his care of a patient displayed a lack of knowledge, skill or judgment or disregard for the welfare of the patient of a nature or to an extent that demonstrated that he was unfit to continue to practice or that his practice should be restricted.

4In the result, the discipline committee, by a majority, found Dr. Porter not guilty of sexually abusing two patients but unanimously found him to be incompetent and failing to keep proper records. He was found not guilty of breaching confidentiality.

5On November 29, 2002, following a penalty hearing, the discipline committee imposed a 30 month suspension of Dr. Porter's certificate of registration, and imposed restrictions on his ability to practice his profession in the future. These restrictions were as follows:

(a) Dr. Porter was ordered to appear before the panel to be reprimanded and the fact of such reprimand was to be recorded in the register.

(b) Dr. Porter's certificate of registration was suspended for a period of 30 months, which taking into account the suspension that had already taken place since December 13, 2000, would be completed as of June 13, 2003.

(c) The following limitations and conditions would be imposed upon his registration:

(i) He would be prohibited from the practice of medicine either in a solo practice or a group setting.

(ii) He would practice medicine in an institutional setting approved by the Registrar subject to the conditions for supervision which follow.

(iii) For a period of five years from the date he recommences his practice in an institutional setting, he would:

a. not treat patients with dissociative-identity disorder or borderline-personality disorder;

b. he must be supervised by two physician supervisors approved by the Registrar in the institutional setting of his practice. These physicians would sign written monitoring agreements acceptable to the Registrar and provide written reports to the Registrar at the end of each six month period for five years, such reports to state whether Dr. Porter is practicing at an acceptable standard of care, and to comment on the adequacy of clinical records and compliance with paragraph (c) (iii) a. above.

(d) The discipline committee added the following additional terms, conditions and limitations on Dr. Porter's certificate of registration:

(i) He would undertake at his own expense no earlier than six months and no later than 12 months after he resumed practice, an assessment of competence through a Specialty Assessment Program (S.A.P.) of the Quality Assurance Committee of the College. The Quality Assurance Committee would be provided with the decision and reasons for decision of the discipline committee and the assessment should consider and address the concerns identified in the board's decision and focus on general psychiatric practice.

(ii) He must abide by and implement forthwith any recommendations of the S.A.P. or the Quality Assurance Committee, including a recommendation, if any, for reassessment(s).

(iii) That if at any time after five years of practice he wished to treat patients with dissociative-identity disorder or borderline-personality disorder:

a. He would undertake at his own expense within six months of his resumption of such treatment, a further assessment of competence for the diagnosis and treatment of such disorders through a S.A.P. of the Quality Assurance Committee of the College. The Quality Assurance Committee would be provided with the decision and reasons for decision of the discipline committee and the assessment should consider and address the concerns identified in the decision of the board and focus on general psychiatric practice with emphasis on the diagnosis and care of patients with dissociative-identity disorder and borderline-personality disorder.

b. He shall abide by and implement forthwith any recommendations of the S.A.P. or the Quality Assurance Committee including a recommendation, if any, for reassessment(s).

c. That until and unless the S.A.P. recommends otherwise, his treatment of such patients will be supervised by a physician supervisor approved by the Registrar. The supervisor should sign a written monitoring agreement acceptable to the Registrar and provide a written report to the Registrar at the end of each six-month period, such report to state whether he was practicing at an acceptable standard of care in his diagnosis and treatment of patients with dissociative-identity disorder or borderline-personality disorder.

(iv) He or the College may apply to the discipline committee at the end of a five-year period of practice in an institutionalized setting for variation of this penalty order, at which time a panel of the discipline committee may review the terms, conditions and limitations on his certificate of registration, and may determine the nature and extent of the supervision and reporting that should be regarding his practice in an institutionalized setting. In the event that neither party applies to the discipline committee for such variation in the order, he may continue to practice in an institutionalized setting that is approved by the Registrar of the College, subject to paragraph (d)(iii) above and the usual requirements of supervision imposed by that institution.

6The appeal before us was directed at two aspects of the committee's decision. The first was against the finding of incompetence and the second, against the penalty subsequently imposed by it. The bulk of the evidence at the main hearing dealt with the allegations of sexual abuse. The majority of the panel dismissed these charges finding that there was a lack of clear, convincing and cogent evidence sufficient to support these allegations. They found that this evidence against Dr. Porter was often "fragile and the testimony at times suspect".

7Dr. Porter received his medical degree in 1987 from MacMaster University and after practicing one year in family medicine returned to a psychiatric residency in 1988. He graduated and was certified as a psychiatrist in 1992 and that fall, opened private practice.

8The evidence the committee heard while dealing with this subject matter concerned two psychiatric patients. This dealt, not only with the diagnoses made by Dr. Porter and the treatments he prescribed, but also with the manner in which he dealt with these women, including the office procedures he followed as their doctor. One of these patients referred to as "patient X" was diagnosed as suffering from dissociative-identity disorder ("DID"). Dr. Porter took her on as a patient in August of 1994, approximately two years after he became qualified to practice as a psychiatrist. About one year later, he undertook the treatment of a patient referred to as "B. H.", who was diagnosed as suffering from a severe type of borderline-personality disorder ("BPD"). Expert testimony at the hearing suggested strongly that these are both conditions that require considerable experience and skill to treat, and that Dr. Porter in taking them on at this early stage in his career was assuming a responsibility for which his experience at that time was too limited.

9The major concern expressed by the committee was Dr. Porter's failure to keep up-to-date, complete and accurate medical records of these two patients. Some 60 percent of the notes dealing with patient X (whom the committee described as "a most complex DID patient") were missing and approximately 10 percent of his clinical notes dealing with his treatment of B.H. were also missing. The committee was not prepared to treat this as a matter of administrative inefficiency, pointing to the absolute necessity of chronicling fully the treatment of such complex patients. In failing to keep adequate notes and records regarding these two patients, the committee was of the view that "the significant lack of clinical notes for seriously ill patients demonstrated disregard for the welfare of his patients of a nature and to an extent that demonstrates that he is unfit to continue to practice or that his practice should be restricted."

10It was the position of the appellant that the discipline committee's finding of incompetence and conduct unbecoming of a physician was largely based on this poor record keeping. While this was unquestionably a factor in the committee's reasoning, we note that there were other examples upon which they relied in their reasons for reaching their decision. They pointed to an occasion when B.H., in an angry mode, did substantial damage to Dr. Porter's office and rummaged through his records. Notwithstanding this, about one month later, when she was again exhibiting signs of considerable anger, he left her alone in the office and she repeated the same type of damage.

11On another occasion, patient X, apparently very upset at something that had transpired in Dr. Porter's office, took an overdose of some psychotropic medication in the adjoining bathroom. Although this caused her to exhibit symptoms that warranted immediate medical assessment, Dr. Porter simply assisted patient X's husband to get her to the car to take her home. As it happened, no serious damage ensued, but the committee was of the view that given all of the circumstances, he ought to have performed a medical assessment of the patient to be satisfied that she was not in grave danger.

12On another occasion, B.H. threatened to jump out of a window during a psychiatric session which became stormy. The panel expressed the view that this situation called for immediate action by Dr. Porter, such as calling for an ambulance and admission to a medical facility to protect B.H. from self-harm.

13In his sessions with both of these patients, Dr. Porter, told both of them a good deal about his personal life, including his marriage, his children and their social life, his adolescent problems, his previous marital problems and his history of alcoholism. This, the committee felt, was done without regard to the serious nature of the illnesses of the two patients and the potential impact on them he should have foreseen.

14In our view in considering the findings of the committee, we are not limited to taking into account only those allegations referring to the poor record keeping practices of Dr. Porter. All of the matters referred to were indicative, in the view of the committee, of his lack of skill and experience to treat these two particular patients, and indicated to them that he lacked insight and judgment to realize his limitations. They felt that he should have asked for help or referred the patients to more experienced psychiatrists. In our view, we feel we are entitled to review all of the evidence taken into consideration by the committee. It is true that no specific particulars of the allegations of incompetence were raised in the notice of hearing. However, the notice did give particulars of the allegations of sexual misconduct. In our view, the wording of the notice of hearing gave Dr. Porter ample notice that the allegation of lack of competence would be raised against him.

15Counsel for the appellant also argued that there was no expert testimony called by the College to demonstrate that the actions or failure to take action on the part of Dr. Porter constituted incompetence or professional misconduct. We think that the committee was entitled to take into account the cumulative effect of all of the incidents as disclosed in the evidence referred to above to reach their conclusions. Additionally, this committee, because of the specialized nature of the subject matter under consideration and of the skill and knowledge required of its members, is one to whom deference ought to be shown. See Pearlman v. Manitoba Law Society Judicial Committee, [1991] 2 S.C.R. 869 and Pezim v. British Columbia (Supt. of Brokers), [1994] 2 S.C.R. 557 and Re Takahashi v. College of Physicians and Surgeons of Ontario (1979), 26 O.R. (2d) 353 (Div. Ct.).

16Moreover, the committee's decision was apparently influenced by their impression of the appellant's demeanor as a witness. The reasons given by both the majority and minority members of the panel following the first hearing disclosed that to different degrees they were adversely affected by the manner in which Dr. Porter gave his testimony. In the majority opinion, the committee in referring to Dr. Porter's inadequate record keeping said"In his testimony, he showed no understanding of the significance for patients of his failing and no appreciation of his professional responsibility."

The minority felt that he was argumentative with counsel, trying to correct him on irrelevant facts and"… at other times, it appeared that he attempted to use his knowledge of psychiatry to confuse the panel."

In their reasons following the penalty hearing, the committee as a whole, in referring to Dr. Porter's apparent attitude, said"The committee was of the view that Dr. Porter failed to appreciate the depth of his misconduct and demonstrated a cavalier attitude towards the significant deficiencies. "

Later in their reasons, they said"He took an argumentative and circular approach in replying to questions which required a simple answer. His attitude while giving evidence was perceived by the committee as a simple dismissal of the gravity of his discrepancies and showed a lack of insight into his problems."

17Counsel for the appellant argued strenuously that no such attitude is evidenced on the record. This court, like all appeal courts, is at a disadvantage by not having had the opportunity of observing the appellant while he was testifying. There does not, in our view, appear to be any reason for disagreeing with the views of the committee. We can see no error in principle on its part in reaching its decision in its finding of incompetence. Accordingly, this aspect of the appeal is dismissed.

18With regard to the appeal from the penalty imposed by the discipline committee, we are conscious of the attitude of the courts, that a court sitting in appeal ought not to disturb the penalty and substitute its judgment for that of the committee, unless there is an error in principle or as Robins J.A. said in Takahashi v. College of Physicians and Surgeons of Ontario [supra]"unless the punishment clearly does not fit the crime so to speak." It should be borne in mind that the proceedings arose out of the complaints of sexual abuse from the two patients B.H. and X and that both of these were dismissed. An interim order based on these allegations was made under section 37 of the Health Professions Procedural Code (the "Code"). It suspended the appellant's certificate of registration effective December 13, 2000, pending the completion of the hearing. The hearing into the complaints of the two patients took place over a period of approximately one and one-half years. On February 14, 2003, Lederman J. issued a stay of the suspension pending the disposition of this appeal. His certificate of registration was in effect in suspension for more than two years.

19In its reasons, the committee imposed the penalty more specifically set out above. In our view, this punishment is not reasonable. We regard it as excessive in relation to the sole finding against Dr. Porter of incompetence and clearly does not "fit the crime". Counsel for the appellant supplied to the court a summary of penalties imposed in other cases, some of which were decisions of this court, and all of which involved comparable or more serious charges. This helpful summary demonstrated an attitude by the College and the court much less critical than that displayed in this case. This is not in any way to be construed as a denigration of the committee's commendable wish to place the security of the public as a first priority. We think, however, that in view of the findings of the committee, the penalty imposed is too restrictive.

20The committee in its reasons expressed concern about the apparent failure of Dr. Porter to issue an apology to the complainants. They said at page 6 of their reasons"The committee noted that this signaled a lack of remorse on Dr. Porter's behalf for the problems he caused to his patients."

Had there been some substance to the allegations of sexual abuse, this might have been a relevant observation. Since he was denying them however, and defending himself against those charges, it is difficult to see how he could, at the same time, apologize for that alleged behavior. This is especially so when one considers that those charges were dismissed. A mere absence of remorse cannot be used as an aggravating factor as Dr. Porter was entitled to maintain his innocence. At most, an absence of remorse might disentitle him to leniency in the imposition of a penalty. The committee erred in placing the emphasis on this perceived failure that it apparently did.

21Dr. Porter indicated that he would be prepared to work under some restrictions in an effort to avoid the difficulties in which he found himself. He had completed a two and one-half day course on boundary issues and a record keeping course, both of which were offered by the College. He suggested that he would also be prepared to install a video system in his office, which with the consent of his patients, he would tape entire psychiatric sessions. In this way, his sessions that could be monitored by his office staff and preserved for inspection.

22He also indicated through his counsel that he would be willing to discontinue treating any dissociative-identity disorder or borderline-personality disorder patients.

23He also indicated that he would be prepared to implement a plan suggested by his witness Catherine Smith, an expert in the design, organization and supervision of medical offices, whose recommendations included the following:

(a) that he would hire a full-time secretary;

(b) that he would implement a system to restrict patients' physical access to the office;

(c) that he would implement a procedure to ensure that he was treating a broader cross-section of general psychiatric patients, as opposed to the heavy load of serious and difficult patients that he had been working with in the past;

(d) that he would implement a system that would address his problems with record keeping, whereby OHIP could not be billed until notes were written for that patient visit.

24Apparently Ms. Smith was willing to enter into a written undertaking with the College to advise the Registrar of any issues that arose in Dr. Porter's practice on an ongoing basis. Further she was willing to assist him on a daily basis in his practice and in implementing the new system to ensure it was running adequately, at which time she would go to weekly or possibly bi-weekly monitoring. Her supervision would include the intake of referrals, new patients and mail and the management of information.

25In addition, Dr. Hy Bloom, the Chief Psychiatrist of the Clarke Branch of the Centre of Addiction and Mental Health, indicated that he was willing to act as a monitor and supervisor of Dr. Porter's psychiatric practice and to advise the Registrar of the College of any issues in Dr. Porter's practice on an ongoing basis.

26We are of the opinion that these restrictions are more reasonable than those imposed by the College, but would still achieve the protection of the public, which was the primary and legitimate concern of the committee. The appeal as to penalty should be allowed. The suspension of Dr. Porter’s certificate of registration of the appellant is order to be lifted immediately, subject to the following conditions:

(a) Dr. Porter shall install in his office a video system which will, with the consent of each patient, tape each entire psychiatric session and which can be monitored by the office staff and preserved for inspection.

(b) Dr. Porter will retain the services of a full-time secretary.

(c) Dr. Porter will implement a system to restrict the patient’s physical access to his personal office.

(d) Dr. Porter will discontinue treating dissociative-identity disorder or borderline-personality disorder patients for a period of five years. If after that period of time, he wishes to treat patients with the disorders referred to in this subsection, he shall undergo an assessment of competence through a S.A.P. of the Quality Assurance Committee of the College in accordance with subsection (d) (iii) a., b. and c. (pp. 3 and 4 infra). Any time after the expiration of the period of five years, Dr. Porter may apply to the discipline committee for a variation of these conditions or any other conditions on his certificate of registration.

(e) Dr. Porter will implement a procedure to ensure that he treats a broader cross-section of general psychiatric patients.

(f) Dr. Porter will implement a system that will address his problems with respect to record-keeping to avoid billings being submitted to OHIP before the appropriate notes for that patient visit have been written.

(g) Upon filing with the Registrar of the College of Physicians and Surgeons the written undertaking of Catherine Smith, Dr. Porter will seek and receive from her daily assistance to ensure that his practice is operating adequately and thereafter, once that has been determined, will have his practice monitored by Ms. Smith on a bi-weekly basis. Her supervision shall include the intake of referrals, new patients and mail and the management of information. To this end Dr. Porter will make available to her such random charts and files as she might require in order to assess that appropriate notes are being prepared and that OHIP billing is appropriate.

(h) Dr. Porter will seek and obtain the assistance of Dr. Hy Bloom to monitor and supervise his psychiatric practice and to advise the Registrar of the College and Physicians and Surgeons of any issues in it on an ongoing basis.

27Success being divided, there will be no costs either here or before Lederman J. February 14, 2003.

SOMERS J.

I agree:

THEN J.

DATE:

COURT FILE NO.: 766/02

DATE: 20030710

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

then, somers and greer jj.