It was ‘reasonable’ to force woman to testify in Toronto doctor’s sex abuse case, court rules

The discipline case against Kayilasanathan attracted scrutiny over the fact the main witness did not want to be part of the proceedings and had fought the legal requirement that she testify.

The discipline hearing at the college heard that after a long night of partying in 2010, Kayilasanathan suggested to the woman — known only as Ms. A due to a standard publication ban — that she come in to his clinic the following day to get a doctor’s note in order to avoid taking an exam for which she wasn’t ready. The woman went back a week later for another note to avoid another exam.

At some point between the two clinic visits, she and Kayilasanathan had sex at a hotel, the hearing heard. Sex between health-care professionals and their patients is forbidden under Ontario law and requires the mandatory revocation of the professional’s licence.

The college learned Ms. A’s identity after she revealed to another physician she had had sex with Kayilasanathan. That physician was required by law to report it to the college but did not include Ms. A’s name, as she refused to consent.

The college then compelled the other physician to provide Ms. A’s name and, in turn, the college served her with a summons, legally compelling her to attend an interview as the college investigated Kayilasanathan.

Read more:

Toronto doctor’s licence revoked after years-long sex abuse saga

Ms. A then hired her own lawyer to try to quash the summons, calling it an abuse of process and saying she feared those close to her would find out about the case. But her request to the college’s discipline committee was rejected.

In its ruling this month, which dismissed Kayilasanathan’s appeal of the finding and punishment made against him, the Divisional Court found no issue with the way the discipline committee treated Ms. A. The judges concluded that the college has, under Ontario law, broad investigative powers.

“The (discipline) committee recognized that the case law has clearly established that there may be cases in which the college’s overarching mandate to protect the public interest will prevail over the patient’s individual interests,” says the ruling by Justices Michael Quigley, Barbara Conway and Lise Favreau.

The court also found that the provisions in the law around sexual abuse by health professionals are “not solely to protect patients and their autonomy,” but rather to encourage the reporting of abuse and to ultimately eradicate it in the health professions.

“(The committee) concluded that Ms. A’s personal interests were outweighed by the public interest in this case and that the issuance of the summons was not an abuse of process,” the judges wrote. “The committee’s decision not to quash the summons fell within the range of acceptable outcomes that are defensible in respect of the facts and the law in this case. Its decision was reasonable and this ground of appeal must therefore fail.”

The judges also rejected Kayilasanathan’s argument that Ms. A was not actually his patient, pointing to factors that led the discipline committee to conclude that she was indeed his patient, including the fact that he had prepared a medical record of each visit and billed OHIP.

The woman herself testified at the college that she “essentially used him to get a doctor’s note.”

Kayilasanathan is “very disappointed” with the court’s ruling and considering his appeal options, one of his lawyers, Jaan Lilles, told the Star.

The college had previously tried to discipline Kayilasanathan and another doctor, Amitabh Chauhan, on charges of unprofessional conduct for allegedly drugging and sexually assaulting a different woman. The pair had earlier been acquitted by a judge in 2014 following a high-profile trial in criminal court, where the burden of proof is higher than at the college level.

The discipline proceedings never got off the ground, as the woman, who had already testified at the preliminary hearing and trial, could not bring herself to testify a third time.

Jacques Gallant is a Toronto-based reporter covering legal affairs. Follow him on Twitter: @JacquesGallant

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