The Doctor’s Lawyer: Mandatory Reports from Other Regulated Health Professionals

What happened?

A psychologist filed a mandatory report against a physician after the patient alleged that the physician had touched the patient inappropriately during a medical appointment.

There were inconsistencies between the psychologist’s mandatory report and what the patient told the College. Initially, the patient alleged that the physician touched both of her breasts – as did the mandatory report. Later, the patient alleged that the physician only touched one breast.

Notably, the patient’s change in her account of the events happened after the College investigator told the patient that an examination of her breasts (plural) may have been clinically indicated in the context of her appointment.

There was also a discrepancy in the allegation that the physician ‘looked’ at the patient’s vagina (in the mandatory report) or whether he touched her labia (per the patient during her interview with College investigators).

These are important details for any defence counsel when preparing for a discipline hearing. Changes to a complainant’s account of events – particularly when they speak to the central issues in the case  – are critical tools on cross-examination.

The physician brought a motion seeking production of the psychologist’s records. He argued that the records were relevant to his defence in light of the inconsistencies. Of particular concern was whether the psychologist’s views influenced the patient’s evidence.

The Discipline Tribunal disagreed and dismissed the physician’s motion.

What does this mean?

The legal test to meet for production of records held by a third party is if: 1) the records are likely to be relevant to an issue in the hearing or the competence of a witness to testify; and 2) the production of the records is necessary in the interests of justice.

In this case, the Discipline Tribunal found that the inconsistency between whether the physician ‘looked’ at the vagina or touched the labia was irrelevant. The reason for this finding, in short, was: “[i]n a medical context, “looked at” often connotes a physical examination that may involve touching.”

However, the Discipline Tribunal agreed that the records were relevant to the inconsistency regarding whether both breasts were touched vs. just one breast. It was further acknowledged by the Discipline Tribunal that this may become a significant issue at the hearing because it was the College’s anticipated position that the touching of a single breast was more likely to be sexual, in this particular case.

To state the obvious – this is not a suggestion that you should touch both breasts to avoid a discipline referral! Rather, the meaning of the difference between both breasts or one breast was entirely case-specific.

Despite finding the inconsistency was relevant (part 1 of the legal test), the Discipline Tribunal nonetheless concluded that it was not in the interests of justice to order production of the records (part  2 of the legal test). In reaching its decision, the Discipline Tribunal reiterated its position on the importance of patient privacy, particularly in cases involving sexual abuse allegations:
It is important to the system as a whole that patient privacy and the efficacy of the therapeutic relationship have significant weight. It is in the public interest that therapy records get strong privacy protection in health discipline proceedings and that patients can speak to a therapist about their trauma knowing that protection exists.

 The Discipline Tribunal also found that the inconsistency with the psychologist’s mandatory report was of low probative value because the inconsistency appeared in other places in the record. In the Discipline Tribunal’s opinion: “[t]here is an ample basis on which to explore this issue, and the notes would add little. This is not a case where the only alleged inconsistent statement was made in therapy.”

The Discipline Tribunal went on to say: “[i]t is also worth noting that because the purpose of therapy is very different from fact-finding, the value of such records is inherently limited.” As defence counsel, this sentence bugs me. On the one hand, the Discipline Tribunal is saying that the value – or reliability – of therapy records is ‘inherently limited’ because therapy is not about facts (or reality). Consequently, the low probative value of those records is used as a reason to deny production. Yet, when psychologists (as in this case) file mandatory reports based on what is said in therapy, it immediately triggers an investigation and the impact and consequence on the physician is very, very real, if not career-ending.

 The bottom line?

Succeeding on a motion for third party records is an incredibly high threshold because of the stringent legal test and the Discipline Tribunal’s emphasis on protecting patient privacy. But, that doesn’t mean you shouldn’t try when the facts make sense. There is case law where the records are found to be relevant – particularly when the discrepancies have high probative value.  And when they do, it can mean the difference between winning and losing your case.