What would you do if your doctor groped your breast after you had gone to see him about your throat? When it happened to Beth, she just stood there.
She was 19, visiting a Calgary physician about her chronic tonsillitis. After examining her throat, he told her to stand in the centre of the room and asked her to take off her top. She
did.
She started to feel uneasy. But, she thought, he’s a doctor. He must have a good reason for asking, right?
Then he asked her to take off her bra and said he needed to listen to her heart and lungs. With his head and one hand against her back, he groped her breasts with the other hand.
For 10 minutes.
“You must be thinking, why would you stand there and let this man do this to you?” says Beth (not her real name). “Well, I was raised in a Catholic 1960s home: doctors and priests are infallible and don’t you dare question them.”
When she left the office, Beth felt sick. The same doctor was going to operate on her in a week. If he grabbed her breasts when she was awake, what would he do when she
wasn’t? Instead of being angry with the doctor, however, she became angry with herself. “I thought, how dare I think that about a doctor?”
Several days later, sitting in Calgary’s Grace Hospital waiting for her surgery, she broke down. A nurse wandered in and Beth told her what happened. The nurse promised her: “Don’t you worry. You will not be left alone with him.”
True to her word, nurses made sure she was never alone with him during her stay. “It was like this sisterhood of nurses protecting me. That was the first time I felt the power of women supporting each other,” recalls Beth.
For 13 years, not a word passed her lips. A part of her still thought she must have misunderstood, or it must have been her fault in some way. Then, when she was in her early 30s, she saw a counsellor and realized she had been assaulted. Now 39, Beth says, “it breaks my heart that I would have allowed that.”
Beth’s story is not unique. Even the 2000-year-old Hippocratic oath refers to sex with patients as an “intentional injustice” and prohibits it. However, according to a 1991 Ontario telephone survey, eight percent of female respondents over the age of 15 had been sexually harassed or abused by a physician. Behaviour ranged from inappropriate comments and groping to sexual relationships. Perhaps even more revealing was an Ontario Medical Association survey conducted the following year in which 11 per cent of doctors said they had knowledge concerning a colleague who had sexual contact with a patient.
How do they get away with it? For starters, experts on sexual abuse report that those who are in positions of authority – clergy, teachers and health professionals – make up a disproportionate percentage of offenders.
According to Saskatchewan law professor Marilou McPhedran, one of Canada’s top experts on the sexual abuse of patients, doctors in particular are given a very high level of trust. “The abuse can therefore happen relatively easily, because people come to them in a state of vulnerability. They say things to a health professional they would say to nobody else – this ramps up the potential for the abuse of power and trust.”
And because doctors are held in such high regard, victims feel less willing to come forward and report the assault. “What has been the most telling is the fact that the ‘mister stranger danger’ was, and continues to be, the stereotype of an assailant. That was what we were combating all the time – somebody with a position in the community was not considered suspicious,” according to Pat Marshall, a co-founder, along with McPhedran and others, of the Metropolitan Action Committee on Violence Against Women and Children (METRAC), one of Toronto’s first organizations devoted to ending violence against women.
“This all goes back to what has historically been a profound misunderstanding of sexual abuse involving breach of trust. The impact of those breaches of trust are misunderstood and trivialized, and yet are so long-lasting and intense. When your basic trust foundations are gone, the whole world becomes topsy-turvy,” says Marshall, an anti-violence advocate for over 30 years.
Many victims do not even realize at first that they have been assaulted. However, they suffer the same repercussions as other victims of sexual assault: shame, confusion, guilt, self-doubt, anxiety, depression and even suicidal thoughts. Their health is likely to deteriorate because they may also avoid doctors altogether – some women go decades without seeing a physician.
If the problem is so serious, why aren’t more doctors punished?
The only authority that can strip a doctor of their medical licence is a self-governing provincial college of physicians and surgeons. The same goes for nurses, psychologists, chiropractors, dentists and other health professionals.
According to many who work in the field, the self-regulation of the medical profession is one of the biggest factors.
“I think it is idiotic that sexual abuse falls under self-regulation,” says Susan Armstrong, a violence counsellor in Vancouver. “For a botched operation, I buy that you need another medical professional to assess what is appropriate. But you don’t need a medical background to know whether someone’s hand should be on my breast.”
Historically, provincial colleges have not been eager to investigate the abuse of patients by their members. Dr. Gail Robinson, a psychiatrist and another co-founder of METRAC, recalls what happened in Ontario 20 years ago.
“When we first went to the college about these issues, they tried to minimize them. We knew for years that they had been getting complaints and that they had been dismissing them,” recalls Robinson. To its credit, the organization appointed a task force of lawyers, counsellors and psychiatrists in 1990. McPhedran led the task force and Robinson and Marshall were two of its members.
The task force produced a groundbreaking report that came to the conclusion that the only way to fix the problem was to enact a law based on the policy of zero tolerance of sexual abuse. Any regulated health professional (including nurses, dentists, chiropractors, psychologists and more than 20 other disciplines) found guilty of acts that constitute the sexual abuse of a patient should be stripped of their license, period, said the report. Even if the sex appeared to be consensual, the report continued, a strict barrier was needed to protect patients because of the inherent power imbalance between a health care provider and a patient.
Despite fears the report would gather dust, many of the task force’s recommendations were incorporated into various provincial laws, including the Regulated Health Professions Act of 1994. The Ontario law is clear. A physician found guilty of sexual abuse – which can include anything from sexualized behaviour and inappropriate touching to sexual intercourse – faces disciplinary penalties, with the toughest being a five-year mandatory revocation of his licence if found guilty of any of the following: “sexual intercourse, genital to genital, genital to anal, oral to genital, or oral to anal contact, masturbation of the [doctor] by, or in the presence of the patient, masturbation of the patient by the [doctor], encouragement of the patient by the [doctor] to masturbate in the presence of the [doctor].” Doctors guilty of so-called lesser sex offences may have their licence suspended for six months or more, or conditions may be attached to their licence by the college. For example, a physician could be prohibited from conducting physical examinations of female patients without a nurse present.
Adds Kathryn Clarke, senior communications coordinator for the Ontario College of Physicians and Surgeons: “In cases where sexual abuse of a patient has been proven, the doctor cannot apply for reinstatement until five years have elapsed.” However, Clarke goes on to say, the mandatory penalty of revocation is not applicable to all cases of sexual abuse, and the discipline committee “uses its discretion” when imposing penalties.
Ontario’s zero-tolerance approach influenced similar laws in P.E.I., New Brunswick, Alberta and B.C. And in a groundbreaking 1992 Supreme Court of Canada case, Norberg v. Wynrib, the court found that “where such a power imbalance exists, it matters not what the patient may have done, how seductively she may have dressed, how compliant she may have appeared, or how self-interested her conduct may have been – the doctor will be at fault if sexual exploitation occurs.”
Some 16 years later, however, some of the original task force members say the promise of zero tolerance has not been fulfilled and the few advances made by the college have largely been eroded.” The pendulum has swung back everywhere, the issue has largely disappeared,” observes McPhedran.
A glance at the College of Physicians and Surgeons of Ontario annual report from 2006 shows that few complaints reached the discipline committee. Of the 2,364 investigations the college made into public complaints in 2006 (42 of which involved sexual abuse complaints), fewer than half were forwarded to the college’s complaints committee. The college’s complaints committee took no action in three-quarters of the 1,033 of the complaints. And just 33 cases, or 3.2 per cent of the all complaints made, were sent on to the discipline committee (the annual report does not specify the outcome of cases involving sexual abuse).
One way the current system avoids sending doctors to a discipline committee hearing is to shunt complaints into alternate dispute resolution – a form of private mediation that tries to create a mutually satisfying solution between a complainant and physician. Although alternative dispute resolution is cheaper and quicker, blame is never assigned and patients usually have to agree not to discuss the abuse they experienced or how the case was resolved. So these cases stay off the public record.
There are further problems with Ontario’s system and with others across the country. One is that if a doctor appeals the decision of the college, he can usually continue to practice during the years that appeal may drag on. Patients, on the other hand, do not have the ability to appeal. Second, physicians can rely on their legal insurance plan run by the Canadian Medical Protective Association to cover their costs, but patients have no such support. Third, those who bring complaints forward are only allowed in as witnesses at the proceedings; they cannot bring forth evidence or ask questions of the doctor and his witnesses.
“The justice equation is unbalanced,” observes McPhedran. “Money, power and authority have access to money, power and authority –
that’s how it works.”
Another shortcoming is that there is no direct compensation for victims, unless a victim wins a civil suit, which they must fund themselves. However, Ontario does require the college to set up a fund to pay for some therapy and counselling for some sexually abused patients. It has paid out more than a million dollars for more than 100 applications since 1994.
And yet, even when a physician is found guilty, the ordeal can be horrendous for victims. More than 20 years after a Toronto pediatrician grabbed Sharon Danley’s breasts and stuck his tongue down her throat when he was supposed to be examining her disabled two-and-a-half-year-old son, she filed an official complaint with the College of Physicians and Surgeons of Ontario.
In 1993, the doctor was found guilty by the College. Yet, Danley says that, after four years of having her personal life scrutinized, watching other victims denied the opportunity to testify and then seeing the doctor receive a three-month suspension of his licence, it felt as though she had been “emotionally gang-raped.”
“The tribunal was much worse than the actual violation. The system absolutely traumatizes you. At the time, I was still under the delusion that they would do something. Now, I just wish I had had a Tony Soprano in my life – at least then I would have had some justice.”
Perhaps most troubling of all is that unless a doctor (or any other health-care provider) is found guilty after a full disciplinary hearing at the college, a complainant cannot find out whether other complaints have been made against a doctor.
When Karen found out that several sexual complaints with the College of Psychologists of Ontario had been filed against her psychologist, she was outraged. Her therapist coerced her into a sexual relationship that lasted several months. What made her even angrier was that, when the college eventually did take away his licence to practise as a psychologist, he was still allowed to treat patients as a “therapist.”
“I went through hell, and he was still treating patients,” she says.
In part because complaints against those providing therapy are common, Ontario’s Health System Improvements Act of 2007 brought in a new requirement which requires that anyone practicing under the title of “psychotherapist” must belong to a regulated health profession –
one of the existing colleges or the new College of Psychotherapists being established under the act.
The Criminal Code of Canada does contain prohibitions on sexual assault involving non-physical coercion by authority figures. And often, doctor-patient sexual abuse cases could qualify for a straight charge of sexual assault. South of the border, 22 U.S. states have made sex between a psychotherapist and a patient a felony punishable by up to 15 years in prison.
Gary Schoener, a psychologist who helped form the Minnesota law, believes that coercion is difficult to prove. “You would have to show beyond a reasonable doubt that the sex was accomplished only because of the power differential,” says Schoener. “Not just that it played a role, but that it was the reason the sex happened. And remember, the benefit of the doubt would go to the defendant doctor – this is not the lower level of proof needed to take [away] a licence or registration, or even win in a civil case.”
Ultimately, the fact that health professions in Canada are allowed by provincial governments to act as investigator, prosecutor, judge and jury when there are allegations of abuse by their own members is the greater concern, according to McPhedran.
“It all basically comes down to the same thing,” she says, “layer upon layer of privilege and access that is built on the subjugation of women…But that’s old news.”