Court File and Parties

CITATION: Doyle v. Discipline Committee of the College of Physicians and Surgeons of Ontario, 2019 ONSC 3905 DIVISIONAL COURT FILE No.: DC-562-18

DATE: 20190626

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

SWINTON, TZIMAS, and MYERS JJ.

BETWEEN:

CHRISTOPHER STEPHEN DOYLE Appellant

– and –

DISCIPLINE COMMITTEE OF THE COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO Respondent

Brian H. Greenspan and Naomi M. Lutes, for the Appellant

Amy Block, for the Respondent

HEARD at Toronto: June 19, 2019

REASONS FOR DECISION

F.L. MYERS J:

The Appeal

[1] Dr. Doyle appeals from the penalty imposed upon him by the Discipline Committee of the College of Physicians and Surgeons on August 3, 2018 reported at 2018 ONCPSD 41. Dr. Doyle admitted the allegations and findings of liability against him. The sole issue before the Discipline Committee was whether to revoke Dr. Doyle’s certificate of registration (i.e. his license to practise medicine) or to make a remedial order allowing Dr. Doyle to continue to practise medicine, and specifically psychiatry, under supervision and with license restrictions.

[2] The Discipline Committee found that a remedial order imposing supervision and restrictions on Dr. Doyle would not adequately protect the public. It therefore revoked his certificate of registration.

[3] Despite the thorough submissions of counsel for Dr. Doyle (who were not counsel at the hearing before the Discipline Committee) in my view, the decision of the Discipline Committee to revoke Dr. Doyle’s license falls within the range of outcomes that were reasonably available to the Discipline Committee in the circumstances of this proceeding. As such, the appeal must be dismissed.

Jurisdiction

[4] An appeal lies to this court under s.70(1) of the Health Professions Procedural Code, being Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 on questions of law or fact or both. In an appeal under s.70(1), the court has all the powers of the Discipline Committee.

Standard of Review

[5] The parties agree that the standard of review to be adopted by the court on this appeal is reasonableness. This is a deferential standard under which the court will consider whether the decision of the Discipline Committee was reasonable in that it displayed appropriate justification, transparency, and intelligibility. The court will consider whether the decision of the Discipline Committee “falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law.” See: Dunsmuir v. New Brunswick, 2008 SCC 9 at para. 47.

The Decision

[6] In light of Dr. Doyle’s admissions it is not necessary to delve deeply into the facts. I will set out any facts necessary to deal with the individual grounds of appeal argued. It is sufficient at this stage to simply recite the Discipline Committee’s finding at para. 39 of its decision:

ADMISSIONS

39. Dr. Doyle admits the facts above and admits that:

i) he is incompetent as defined by subsection 52(1) of the Health Professions Procedural Code, which is Schedule 2 to the Regulated Health Professions Act, 1991, (“the Code”);

ii) he has committed an act of professional misconduct under paragraph 1(1)2 of Ontario Regulation 856/93 made under the Medicine Act, 1991 (“O. Reg. 856/93”), in that he has failed to maintain the standard of practice of the profession; and

iii) he has committed an act of professional misconduct under paragraph 1(1)33 of O. Reg. 856/93, in that he has engaged in an act or omission relevant to the practice of medicine that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional through his posting of unprofessional YouTube videos and through his unprofessional telephone communication.

[7] Dr. Doyle admitted incompetence under s.52(1) of the Code that provides:

52 (1) A panel shall find a member to be incompetent if the member’s professional care of a patient displayed a lack of knowledge, skill or judgment of a nature or to an extent that demonstrates that the member is unfit to continue to practise or that the member’s practice should be restricted. [Emphasis added.]

[8] By definition therefore, as a consequence of the admissions made by Dr. Doyle, revocation and restriction of his license were within the range of choices available to the Discipline Committee.

[9] After thoroughly reviewing the evidence, the Discipline Committee found at p.39:

Dr. Doyle admitted to failing to maintain the standard of practice of the profession and to engaging in an act or omission that would be reasonably regarded by members as disgraceful dishonorable or unprofessional. Dr. Doyle also admitted that he is incompetent.

The Committee reviewed the agreed facts and the evidence put before it, the submissions of the counsel, and case law. The question before the Committee was to determine whether or not Dr. Doyle could practise with restrictions that would protect the public from harm and whether this would be an appropriate penalty. The Committee concluded that Dr. Doyle poses a serious risk to the public in the way that he practises medicine. The Committee found that Dr. Doyle lacks insight into the depth of his professional deficiencies and he lacks judgement in turning knowledge into action. His failings are fundamental, pervasive and profound. Despite many years of supervision, monitoring and psychotherapy, his patients are still at serious risk of harm because of his deficiencies. The Committee found no evidence to indicate that he has addressed his financial problems, his marital problems, or childhood abuse issues, which are still unresolved and are likely to perpetuate his deficiencies and lack of judgement.

Dr. Doyle did not testify at the hearing and the Committee did not hear directly from him as to why he thinks remediation would work at this time, when it has failed over the past several years. Dr. Doyle practised under supervision for a lengthy period which proved to be ineffective.

On the importance of insight, the Committee considered the decision in CPSO v. Liberman (2012), which states that “despite the overwhelming evidence that led to the conclusions that the Committee reached, Dr. Liberman showed little insight into his failing. When someone is going to be remediated they need to be able to look at their actions in an open-minded way. Dr. Liberman seems to be so entrenched in his view that he does not seem to be able to examine his own actions.” Lack of insight is a critical issue when it comes to remediation.

[10] The Discipline Committee concluded at p.41 of its decision:

Dr. Doyle has been given numerous chances at remediation with many years of psychotherapy, supervision, monitoring and practice restrictions. Despite this, he is still struggling with professionalism, boundary issues, and clinical care. It is clear to the Committee that Dr. Doyle has the intelligence and knowledge to be a good physician, but it is also clear that he lacks insight into his deficiencies. He tends to minimize them, and he demonstrates a clear lack of judgment, which is pervasive. This puts his patients at a serious risk of harm in many areas starting with patient selection, charting, reporting, diagnosing, and prescribing.

The Committee is persuaded that a remedial order, with supervision and restrictions on his certificate of registration, would not protect the public. The Committee finds that revocation of Dr. Doyle’s certificate of registration is required in the circumstances of this case to fulfill the Committee’s objective of protection of the public.

Grounds of Appeal and Analysis

[11] Dr. Doyle argues that the Discipline Committee ignored evidence establishing that he had good prospects for rehabilitation. He argues that the Discipline Committee focused on the goals of deterrence and protection of the public rather than properly factoring into the equation his prospects of rehabilitation. Dr. Doyle argues that the Discipline Committee chose to portray him in the worst possible light and ignored positive evidence in his favour.

[12] For example, Dr. Doyle argues that the Discipline Committee failed to consider that he has taken further counselling and attended some 67 professional development courses since the disciplinary process commenced in 2017. It gave little weight to the fact that he accepted his responsibility by admitting liability. His treating therapist, Dr. Ruskin, testified that he had some confidence that Dr. Doyle has developed insight into his issues. While Dr. Doyle demonstrated a significant lack of judgment regarding professional boundaries with a patient referred to as patient “A”, Dr. Doyle argues that the Discipline Committee gave no notice to the fact that he did not exploit her physically or sexually.

[13] Counsel argued that in light of the foregoing points, there was a dynamic and dimension to Dr. Doyle’s admissions that was not appreciated by the Discipline Committee.

Over-emphasis of Dr. Doyle’s Discipline History

[14] Counsel argued that Dr. Doyle’s two prior proceedings - before the Registration Committee in 1998 and the Discipline Committee in 2009 - were isolated incidents that did not support the findings of the Discipline Committee that Dr. Doyle engaged in “pervasive misconduct” and showed a “lack of judgment over several years”. Counsel for the College established that the same issues that were found to lie behind each of the prior incidents continued to be recited as the causes of Dr. Doyle’s current issues. For example, there was evidence equating the findings of Dr. Gabbard in 2009 with those of Dr. Ruskin in 2018.

[15] Dr. Doyle argues that the Discipline Committee put too much weight on finding that he failed to follow recommendations made by Dr. Gabbard without acknowledging that he did everything that he was ordered to do by the College. His history was one of compliance with orders he argues.

[16] While it is true that Dr. Doyle is not alleged to have breached any orders that were made against him, the principal concern of the Discipline Committee was with Dr. Doyle’s apparent lack of insight into his boundary issues and practice deficiencies. The boundary issues were identified by Dr. Gabbard in 2009 and, at that time, Dr. Doyle told the Discipline Committee that he had followed Dr. Gabbard’s recommendations to address his problems. He said, for example, that he had restricted his practice in order to avoid accepting patients suffering from the types of problems that might be triggering to Dr. Doyle in light of his own issues. As it turns out, Dr. Doyle did not follow through with the implementation of Dr. Gabbard’s recommendations. While this did not create a discipline problem for breach of an order, it did fairly concern the Discipline Committee in its assessment of whether Dr. Doyle truly has insight into his problems as he claims. The Discipline Committee was charged with assessing whether the public could be protected by Dr. Doyle’s assurance of his insight when he has failed for over a decade to adequately address issues that were identified to him and which he had represented he was addressing.

Dr. Doyle’s Failure to Testify

[17] The Discipline Committee noted in passing that Dr. Doyle did not testify before it to explain why he believes that remediation efforts will work this time considering his past failure to implement recommended steps. The Discipline Committee did not draw an adverse inference from his failure to testify. I should note that, in the civil context of this proceeding, there would be nothing objectionable had the Discipline Committee drawn an inference that Dr. Doyle’s failure to testify signified his view that his testimony would not be helpful to his case. But, it did not draw that inference. Rather, it just noted that given the case presented against him, Dr. Doyle’s testimony would seem to be a potentially important piece of evidence to establish that he truly has developed insight into his issues and that he is a good candidate for rehabilitation. The Discipline Committee was entitled to indicate that a source of potentially helpful evidence was not tendered or available to assist it.

[18] Rather than testifying himself, Dr. Doyle tried to establish his insight through the evidence of his treating therapist Dr. Ruskin. The Discipline Committee found that Dr. Ruskin’s evidence was credible and it accepted his diagnosis. However, it also noted that he had quite properly formed a “therapeutic alliance” with his patient. His future hopes for Dr. Doyle were therefore tinged with a natural bias and optimism in favour of his patient. Moreover, in assessing his views of Dr. Doyle’s insight into his issues, Dr. Ruskin agreed that he was relying on the facts as relayed to him by Dr. Doyle. Yet there was evidence that Dr. Doyle did not necessarily relay facts to Dr. Ruskin accurately. For example, Dr. Doyle told Dr. Ruskin that his first regulatory incident was an issue of ambiguous paperwork rather than a deliberate act of misconduct undertaken by Dr. Doyle in face of express warnings against doing so. Despite purportedly accepting full responsibility for his deliberate misconduct at the Registration Committee in 1998, Dr. Doyle under-sold the facts and seriousness of his conduct to Dr. Ruskin.

[19] There was evidence properly before the Discipline Committee on which it was entitled to make findings as to the weight or lack of weight to be assigned to testimony of Dr. Ruskin concerning especially Dr. Doyle’s insight into his problems. Moreover, Dr. Ruskin was not qualified as an expert witness, and he did not address the issue of Dr. Doyle’s incompetence.

[20] Dr. Doyle then argued that before the Discipline Committee held his failure to testify against him it should have told him that without his testimony, he was at risk of losing his license. However, as discussed above, noting the absence of potentially helpful evidence is not the same as drawing an adverse inference. Moreover, the fact that revocation was a live issue was front-and-center throughout the process. Dr. Doyle’s admission of incompetence conceded that he is “unfit to continue to practise” or to do so without restrictions by definition. The limited choices available to the Discipline Committee, including revocation, are set out in the Code and were disclosed expressly to Dr. Doyle in the Notice of Hearing dated July 10, 2017 that commenced the process. Dr. Doyle had fair notice of the issues and made his strategic choices. The Discipline Committee had no duty to pre-judge the outcome or provide additional warnings to Dr. Doyle and his counsel.

Patient “A”

[21] I reject any suggestion that the fact that Dr. Doyle “merely” crossed professional boundaries with Patient “A” and stopped short of committing physical or sexual abuse is at all mitigative. Dr. Doyle’s “abrupt” dismissal of the vulnerable patient put her in an emergency room in a suicidal state. The Discipline Committee was entitled to rely on Dr. Doyle’s admission of professional misconduct in respect of this patient.

[22] Counsel argued that Dr. Doyle is in a Catch-22 situation because he has to be very careful to watch for boundary issues developing with patients but then he is criticized for ending a relationship when a boundary issue arose. A Catch-22 is a logical conundrum that is circular and has no satisfactory outcome. For example, if a person cannot get a job without experience, how can they ever develop experience without first being able to get a job? That is not Dr. Doyle’s situation at all. First, had he shown insight into his problems and been implementing Dr. Gabbard’s recommendations, he never would have accepted Patient “A” as his patient in light of her own background and diagnosis. Second, knowing of the patient’s history of boundary issues of her own, he knew or ought to have known that it was necessary and appropriate for him to erect and maintain formal professional boundaries with her throughout. Yet he did not do so. Finally, he admitted that what his counsel characterizes as his “abrupt” dismissal of the patient, without dealing with the circumstances and seeing to a proper transition to a new therapist, did not maintain the required standard of practice of the profession. Had Dr. Doyle displayed insight into his issues, there was no Catch-22. He only found himself in a difficult situation because he has not been willing or able to accept, internalize, and act upon his known issues.

Over-Emphasis on Written Files

[23] Counsel argues that the expert evidence of Dr. Clarke raising concerns with Dr. Doyle’s competence from reviews of his charts ought not to have been accorded significant weight as compared to the evidence of doctors who had supervised Dr. Doyle and had dealt with him one on one. It is accepted that Dr. Doyle suffers from a learning disability that may explain (although not excuse) some of his poor charting skills. The doctors who supervised Dr. Doyle over the years, and both spoke to him and reviewed many charts, did not see the incompetency found by the expert who reviewed Dr. Doyle’s charts for the College and to which Dr. Doyle admitted.

[24] However, the evidence was that Dr. Clarke, the College’s expert, did speak to Dr. Doyle at some length. Moreover, there was no evidence as to how or why Dr. Doyle’s supervisors failed to notice objectively inappropriate misconduct in his charts, such as, for example: prescribing narcotics on request to patients with no therapeutic need; inappropriate prescribing of medications to patients with known drug abuse issues; and failing to monitor patients for whom drugs were prescribed that require regular blood tests or other monitoring. It was well within the purview of the Discipline Committee to accept Dr. Clarke’s evidence in the circumstances.

Proportionality

[25] Dr. Doyle ultimately argues that revocation of his license is simply a disproportionate punishment in his view. He has taken 67 courses and therapy and now understands his problems and how to deal with them. The Discipline Committee held that the same assurances given some time ago for the same or similar issues have not been borne out. Moreover, while Dr. Doyle’s assurances were being relied upon, while he was undergoing therapy and subject to supervision and license restrictions, many more patients have been subjected to unprofessional and/or incompetent treatment.

[26] Dr. Doyle simply has no answer to the finding of the Discipline Committee that I repeat here for convenience:

Dr. Doyle has been given numerous chances at remediation with many years of psychotherapy, supervision, monitoring and practice restrictions. Despite this, he is still struggling with professionalism, boundary issues, and clinical care. It is clear to the Committee that Dr. Doyle has the intelligence and knowledge to be a good physician, but it is also clear that he lacks insight into his deficiencies. He tends to minimize them, and he demonstrates a clear lack of judgment, which is pervasive. This puts his patients at a serious risk of harm in many areas starting with patient selection, charting, reporting, diagnosing, and prescribing.

The Committee is persuaded that a remedial order, with supervision and restrictions on his certificate of registration, would not protect the public. The Committee finds that revocation of Dr. Doyle’s certificate of registration is required in the circumstances of this case to fulfill the Committee’s objective of protection of the public.

[27] The parties accept that the penalty of revocation is not reserved for the "worst of the worst" cases or offenders. It is available when the facts justify the imposition of a revocation in order to protect the public where no lesser punishment will adequately do so. The decision to revoke Dr. Doyle's certificate of registration is clearly reasonable, and the reasons of the Discipline Committee are intelligible and transparent. There is no basis for appellate intervention.

Order

[28] Accordingly, the appeal is dismissed. Counsel agree that costs of $6,500 should follow the event. Therefore Dr. Doyle shall pay the respondent costs of $6,500 all-inclusive forthwith.

F.L. Myers J.

Swinton J.

Tzimas J.

Date of Release: June 26, 2019

CITATION: Doyle v Discipline Committee of the College of Physicians and Surgeons of Ontario, 2019 ONSC 3905 DIVISIONAL COURT FILE No.: DC-562-18

DATE: 20190626

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

SWINTON, TZIMAS and, MYERS JJ.

BETWEEN:

CHRISTOPHER STEPHEN DOYLE Appellant

– and –

DISCIPLINE COMMITTEE OF THE COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO Respondent

REASONS FOR DECISION

F.L. MYERS J

Date of Release: June 26, 2019