Sexual misconduct

The CMQ has stated this many times over the years. Anyone who has questions on this subject can consult the following documents.

• L'inconduite de nature sexuelle : où en sommes-nous? Portrait de la situation [Sexual misconduct: where do we stand? Overview of the situation; in French only]
• Sexual misconduct

Continuous warnings

Since the origins of medicine, it has always been forbidden for physicians to take advantage of the therapeutic relationship to seduce their patients.

It is mentioned in the Hippocratic Oath (in French only), a Greek text dating from around the 4th century B.C. Today, the professional oath (in French only) requires physicians to conduct themselves “in keeping with the honour and dignity of the profession”.

Sections of the Code of ethics of physicians on this subject

“17. A physician’s physical, mental and emotional behaviour toward all persons with whom he comes into contact in the practice of his profession, particularly toward all patients, must be beyond reproach.”

“22. A physician must refrain from taking advantage of the professional relationship established with the person to whom he is providing services.

More specifically, the physician must, for the duration of the professional relationship established with the person to whom he is providing services, refrain from having sexual relations with that person or making improper gestures or remarks of a sexual nature.

The duration of the professional relationship is established by taking into account, in particular, the nature of the pathology, the nature of the professional services rendered and their duration, the vulnerability of the person and the likelihood of having to provide professional services to that person again.”

Rules of governance of professional orders

• The Professional Code (s. 59.1) and the Code of ethics of physicians (ss. 17 and 22) prohibit any form of sexual intimacy between a physician and a patient.
• For the duration of the professional patient‑physician relationship established with the person to whom he is providing services, the fact of taking advantage of this relationship to have sexual relations with them or of making improper gestures or remarks of a sexual nature constitutes an act derogatory to the dignity of the medical profession.
• The duration of the professional relationship is established by taking into account, in particular, the nature of the pathology, the nature of the professional services rendered and their duration, the vulnerability of the person and the likelihood of having to provide professional services to that person again.

Penalties

Amendments were made to the Professional Code in 2017 to increase the penalties for sexual misconduct.

From now on, the Disciplinary Council (hereinafter referred to as the “Council”) must impose on a professional convicted of such an offence that he be struck off the roll for at least five years, unless he convinces the council that striking off for a shorter time would be justified in the circumstances. A fine ranging from $2,500 to $62,500 is added to the penalty.

When determining these penalties, the Council takes certain factors into account, including the professional’s conduct and the measures taken by the professional to facilitate his reintegration into the practice of his profession.

In addition to being struck off and fined, the council may also recommend that the physician undergo training, psychotherapy or an intervention program to allow him to improve his behaviour and attitudes and facilitate his reintegration into the practice of the profession (s. 160 of the Professional Code).

Application of the new penalties

Since the amendments to the Professional Code, there was still ambiguity regarding the application of the new penalties to offences committed before their coming into force on June 8, 2017.

On April 11, 2022, the Professions Tribunal put an end to this uncertainty. From now on, the new penalties apply at the sentencing stage, even if:

• the offence was committed prior to the coming into force of the law;
• the complaint was filed prior to the coming into force of the law.

So the law has a retrospective effect. This means that its application modifies the future effects of things already done.

Reinstatement on the Roll of the Order

A physician who is struck off for sexual misconduct is not systematically reinstated on the Roll of the Order at the end of the period for which they have been struck off. They must apply to the Disciplinary Council for reinstatement no earlier than the 45th day before the end of the period for which they have been struck off.

The physician must show that:

• they have the appropriate behaviour and attitude to be a member of the Order;
• they have complied with the decision of the Disciplinary Council or the Professions Tribunal, where applicable;
• they have taken the necessary measures to avoid repeating the offence for which they were struck off.

If the application is admissible, the Disciplinary Council makes a recommendation to the Board of Directors that may be accompanied by a restriction of the right to engage in professional activities or by other conditions it considers reasonable for the protection of the public.

Finally, the Board of Directors decides on the physician’s reinstatement on the Roll of the Order and the conditions attached to their professional practice (s. 161.0.1 of the Professional Code).