CHRISTINA LEE-CHAN
<Contributor>
A friend of mine recently went for counselling. During her first session, the counsellor’s medical degree was displayed on the wall of his office, but the counsellor told her that she did not have to call him “Doctor” – she could refer to him by his first name. He explained that he wanted to facilitate a more informal and relaxed atmosphere. Over the course of several sessions, she started to build a trusting counsellor-patient relationship with the counsellor. When my friend told me about her counsellor and that he told her not to call him “Doctor,” I was reminded of a situation Professor Gilmour had mentioned in my Legal Governance of Health Care course. We studied a case where a physician’s licence to practice medicine was revoked, and the unlicensed physician continued to treat patients in the role of “counsellor” or “therapist,” unbeknownst to the patients. I suggested to my friend that we try Googling the counsellor’s name and we were shocked to discover that his licence had been revoked by the College of Physicians and Surgeons for professional misconduct, including sexual abuse of a patient. We were fortunate to have uncovered this information at an early stage. But how could this have happened?
Regulation of Health Professions
In Ontario, 28 health professions have been granted authority for self-regulation pursuant to the Regulated Health Professions Act, 1991 (“RHPA”). Each health profession has a College, which is the governing body with the authority to regulate the members of that particular health profession. The Colleges are mandated with the duty to serve and protect the public interest. For example, the College of Physicians and Surgeons of Ontario (“CPSO”) regulates physicians by licensing them to practice medicine, maintaining standards of practice, and investigating allegations of professional misconduct.
The RHPA sets out a list of “controlled acts”, which no person may perform in the course of providing health care services, unless they are authorized to do so by the Act for their particular health profession. For example, the Medicine Act, 1991 is the Act which authorizes members of the CPSO (i.e. licensed physicians) to perform the controlled act of “communicating a diagnosis identifying a disease or disorder as the cause of a person’s symptoms.” There are exceptions; for example, if you are rendering first aid or temporary assistance in an emergency, you may perform a controlled act. There is also an exception for providing “counselling about emotional, social, educational, or spiritual matters as long as it is not a communication that a health profession Act authorizes members to make.”
The RHPA also restricts the use of the title “Doctor” – only certain health professionals may use the title “in the course of providing or offering to provide, in Ontario, health care to individuals.” An understandable rationale for this prohibition is the fact that Doctors are held in a position of high public trust by patients.
If a member of a College commits professional misconduct, the College may discipline and/or revoke the member’s licence. Once a licence has been revoked from a health professional, they are no longer a member of that College.
Gap in the Regulatory System
The Colleges have continuing jurisdiction over past members, for professional misconduct or incompetence referable to the time when the person in question was a member of the College. This jurisdiction, however, does not help if a situation arises after the licence has been revoked.
There is a hole in the legislative scheme. Since counselling is an exception to the controlled acts, any person can provide counselling as long as it is not a “communication that a health profession Act authorises members to make.” As a result, physicians whose licences have been revoked can still see patients in the role of a counsellor while pretending to be a licensed physician. The CPSO does not have the authority to stop an unlicensed physician from calling himself a counsellor instead of a Doctor, hanging his medical degree on the wall, and telling patients that they do not need to call him Doctor.
In the extreme cases, criminal charges are laid. For example, Ravi Devgan was criminally charged and found guilty of fraud and assault for continuing to medically treat patients with cerebral palsy after the CPSO revoked his licence to practice medicine. Although criminal law may provide some relief, it does not address the root issue. Criminal law is reactive to the problem, rather than protective of the public interest.
Ideally, a physician whose licence has been revoked should be required to disclose this fact, when subsequently “counselling” patients. At the very least, he or she should be prohibited from creating the perception of being licensed.
How can you protect yourself?
More must be done to raise public awareness of this issue. My friend and I would not have known, if not for Professor Gilmour’s course. It is imperative that you search your health professional’s name on the Colleges’ websites to ensure that his or her licence has not been revoked for professional misconduct. For the CPSO’s “All Doctors Search”, visit http://www.cpso.on.ca/publicregister/default.aspx?id=2048. I urge you to share this information for the protection of the general public.
Christina Lee-Chan is in her third year, and is Co-President of the Health Law Association.