Time to get tough on doctors

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JOE BRYKSA / WINNIPEG FREE PRESS archives Theresa Oswald's commitment to reviewing penalties imposed on doctors faces hurdles.

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Health Minister Theresa Oswald has read the decision, heard the public and decided to act.

Oswald said she wants a sit-down with the College of Physicians and Surgeons of Manitoba to talk about the penalties imposed on doctors found guilty of misconduct, including sexual abuse.

In an interview, Oswald said the 18-month suspension handed to Dr. Randy Allan -- who pleaded guilty in September to supplying OxyContin prescriptions to two addicted female patients with whom he was having sex, falsifying medical records and claiming fees for services he never provided -- seemed "small" and perhaps not commensurate with the gravity of the misconduct in this case.

"I found what happened to be disgusting," Oswald said. "I am delighted to know that he isn't practising in Manitoba at the moment. Your question is, 'How am I going to feel when he's practising again?' Not good."

Oswald said she is sufficiently concerned to open discussions with the college immediately about whether penalties for physicians guilty of this kind of behaviour should be subjected to stiffer penalties, including mandatory minimums or lifetime bans. "This is a conversation I need to be having with the college. I want to know how we can amend our situation in Manitoba so that we are using the toughest standards."

Following a two-year investigation, Allan was suspended from practising medicine for 18 months. However, because he has not practised since June 2010, the "active" period of his suspension is six months. As a result, he could be seeing patients in March 2013.

The college's judgment has put Oswald and the NDP government in a difficult situation. Although every case is different, the Allan debacle exposes an old concern about self-governing professional bodies, namely the profound disconnect between the gravity of misconduct and the penalties served.

Consider how the college itself described its findings: "(Allan) exploited the personal circumstances of two women who, by virtue of their addictions, were particularly vulnerable. He also did so in a way which breached his professional responsibilities and contravened the reasonable standards of the profession, which were well-known and understood by him. There were also elements of financial gain and sexual gratification involved in Dr. Allan's actions, all of which make his conduct particularly repugnant and wholly unacceptable."

It is difficult to rationalize how the college, after issuing such a harsh, unequivocal condemnation, could produce an 18-month suspension. Abusing controlled narcotics, exploiting vulnerable women, falsifying records, all for sex and money? It certainly sounds like a serious scenario right up until you consider the consequences.

If there is any comfort for Manitobans in this story, it is that this is not a made-in-Manitoba problem. From the United Kingdom to the United States, self-governing professional bodies have shown a clear lack of objectivity when it comes to punishing their peers.

In Ontario, groundbreaking work in the 1990s led to some of the toughest sanctions against doctors involved in sexual misconduct, including a minimum five-year suspension of any physician found guilty of sexual misconduct. However, even with that legislative context to fall back on, the College of Physicians and Surgeons of Ontario has frequently been called to task for reinstating the licences of doctors who previously pleaded guilty to sexual misconduct. This past spring, the Ontario college was hard-pressed to explain why it was considering reinstatement for a physician who was found to have sexually abused a 15-year-old patient suffering from an eating disorder and depression while he was part of a hospital sexual-assault response team. In another case, a doctor guilty of sexual abuse was reinstated only to be suspended again when he sexually assaulted a female undercover investigator sent in by the Ontario college.

Across the country, there are physicians with histories of sexual misconduct who are nonetheless allowed to practise medicine under preposterous restrictions that prevent them from being alone with women or children. This is consistent with the Allan case; when he returns to seeing patients, he will not be allowed to prescribe narcotics and must have a chaperone present when examining female patients. The colleges claim these measures are designed to "remediate" the physicians, giving them a chance to fly straight. In reality, they are the devices of a profession that appears to be unwilling, under almost any circumstances, to declare someone unfit to practise medicine.

Oswald's commitment to reviewing the penalties handed down to unethical or immoral physicians is welcomed. However, there has not been a strong tradition in this country of politicians standing up to the medical profession when it comes to increasing penalties for misconduct, even after tough talk. With Dr. Allan readying himself to practise medicine again next spring, we can only hope the minister will find the resolve to forge ahead where so many others have failed.

dan.lett@freepress.mb.ca

Republished from the Winnipeg Free Press print edition October 19, 2012 A3