The doctor-patient relationship is a fiduciary one. The patient comes to the relationship in a position of relative vulnerability, sharing private information and undergoing physical examinations on the trust that the physician will act exclusively in the patient’s interest. Where a physician crosses the boundaries of that relationship, whether sexually, financially, or otherwise, the College of Physicians and Surgeons of Ontario has the authority and the obligation to investigate and, where appropriate, to discipline.
College of Physicians and Surgeons of Ontario v Stein, 2023 ONPSDT 21, is a straightforward example of how the Ontario regulatory framework deals with boundary violations and with attempts to obstruct the resulting investigation. The Ontario Physicians and Surgeons Discipline Tribunal found Dr. Raymond Stein, a clinical immunologist with more than 40 years of CPSO membership, guilty of professional misconduct on two grounds: a boundary violation with a 30-year patient, and a subsequent attempt to procure a false alibi from an acquaintance during the College’s investigation.
The Tribunal imposed a six-month suspension, a reprimand, completion of an ethics and boundaries program, and $6,000 in costs.
The CPSO and OPSDT framework
The CPSO is the regulatory body for physicians in Ontario, operating under the Regulated Health Professions Act, 1991 and the Medicine Act, 1991. Where the College’s investigation finds reasonable grounds to believe a physician has committed professional misconduct or is incompetent, the matter is referred to the Ontario Physicians and Surgeons Discipline Tribunal for a hearing.
Professional misconduct is defined by regulation. The Professional Misconduct Regulation (O. Reg. 856/93) under the Medicine Act lists more than 35 categories of conduct that constitute professional misconduct, ranging from specific clinical failings (failing to maintain the standard of practice; failing to keep records) to a well-known catch-all in section 1(1) paragraph 33: conduct “that, having regard to all the circumstances, would reasonably be regarded by members [of the profession] as disgraceful, dishonourable or unprofessional.”
That standard, often abbreviated as DDU, did most of the work in Stein.
The patient: the boundary violation
The Tribunal’s findings of fact in respect of Patient A were uncontested.
Patient A first saw Dr. Stein when she was 26 years old. By 2019 she had been his patient for 30 years.
Following an appointment in October 2019, Dr. Stein telephoned Patient A from his personal cell phone. She initially feared he was calling to deliver bad news about her medical condition. He instead told her he had tickets to a Beatles concert on December 2, 2019, and that he would accompany her. He asked her to meet him at his office and to drive together from there. Patient A felt uncomfortable but agreed because Dr. Stein had been her physician for so long and she respected him.
Later in October, Dr. Stein referred Patient A to a specialist. He told her not to mention their planned outing. The Tribunal observed that the request demonstrated his awareness of the inappropriateness of the planned attendance.
On December 2, Patient A attended Dr. Stein’s office. He put his arms around her waist. He commented on escorting her to her daughter’s wedding. He gave her a Christmas card and a gift.
At the concert he placed his arm tightly around her waist. She disengaged. While they were seated, he grabbed her upper right thigh. She pulled her leg back and leaned away.
Driving her home afterwards, he commented that he knew where she lived. The Tribunal noted that the address was patient-record information. Patient A insisted on being dropped on the street rather than at her residence. She did not respond to a subsequent text from Dr. Stein and did not see him again.
Patient A terminated the 30-year doctor-patient relationship.
The mandatory report and the CPSO investigation
On December 20, 2019, the College received a mandatory report from another physician concerning the incident. The mandatory reporting framework under sections 85.1 to 85.5 of the Health Professions Procedural Code (a schedule to the Regulated Health Professions Act, 1991) requires regulated health professionals to report another regulated professional in defined circumstances, including where there are reasonable grounds, obtained in the course of practising the profession, to believe a professional has sexually abused a patient. The mandatory report triggered the CPSO investigation.
On the disclosed timeline, Dr. Stein appears to have learned of the investigation in 2020. His response, the Tribunal found, was to seek an alibi.
The acquaintance: the attempted cover-up
The Tribunal also accepted as uncontested the facts in respect of Ms. X. Ms. X had known Dr. Stein socially for three years. On the Labour Day weekend of 2020, she was a guest at Dr. Stein’s cottage. He asked her whether she lived in Oakville. He later approached her again and asked her to sign a letter confirming that she had been with him on the evening of December 2, 2019. He told her he needed an alibi.
She refused. She left, upset by the request, and felt that she had been bullied. In January 2021 she contacted the College.
The attempted cover-up became the second basis for the Tribunal’s finding of professional misconduct.
The DDU finding
The Tribunal accepted a joint submission from the College and Dr. Stein that the agreed facts amounted to professional misconduct on the DDU standard. In substance:
- Dr. Stein had effectively directed Patient A to attend the concert with him and recognized the attendance was inappropriate by asking her not to mention it
- He made flirtatious comments, gave her gifts, put his arm around her waist, and grabbed her thigh
- He commented that he knew her address, drawing on patient-record information for an unprofessional purpose
- He made her sufficiently uncomfortable that she terminated a 30-year physician-patient relationship
- He attempted to obstruct the College’s investigation by asking an acquaintance to provide a false alibi, in a manner that the acquaintance experienced as bullying
The DDU standard does not require any single one of these elements to be of the most serious kind. The standard is breached where the conduct, viewed as a whole, would reasonably be regarded by members of the profession as falling outside what is acceptable in the practice of medicine. The boundary violation alone would have met that threshold. The attempted cover-up reinforced it.
The decision
The Tribunal imposed:
- A reprimand
- A six-month suspension of Dr. Stein’s certificate of registration
- Completion of an ethics and boundaries program within twelve months, with proof of completion within one month of completion
- Costs to the College of $6,000
The sanction is on the moderate end of what the Tribunal can impose for boundary-related misconduct. More serious cases, including those involving conduct characterized as sexual abuse within the specific definition in the Health Professions Procedural Code, can result in revocation of the certificate of registration.
The doctrinal context
Stein is a useful illustration of two recurring features of CPSO discipline cases.
First, the boundary framework. Physicians operate under a duty to maintain professional boundaries with their patients. The CPSO has detailed policies on the topic, and the case law applying the DDU standard to boundary violations is substantial. Conduct that might be unremarkable in a non-professional setting (inviting an acquaintance to a concert, putting an arm around someone’s waist) can constitute professional misconduct in the doctor-patient context because the relationship carries an inherent power asymmetry that the physician is required to respect. The longer the patient relationship and the greater the trust accumulated within it, the greater the breach when the boundaries are crossed.
Second, the obstruction framework. Where a physician under investigation attempts to procure false evidence, the obstruction itself is independent professional misconduct. The Tribunal’s willingness to find DDU on the obstruction alone, even setting the underlying conduct aside, sends a clear signal that the integrity of the College’s investigative process is itself a protected interest.
The case also illustrates the practical importance of the mandatory reporting framework. Without the mandatory report from another physician, the College’s investigation would not have begun and the misconduct may not have come to light. Section 85.1 of the Code turns each regulated health professional into a potential safeguard for patients of other professionals, and the framework’s effectiveness depends on professionals honouring the duty.
Why this case matters
For patients. Stein is a reminder of the protections available to patients through the CPSO. Where a physician’s conduct crosses professional boundaries, the patient (or any other person, including another physician) can file a complaint with the College. The College has the authority to investigate and, in serious cases, to refer the matter to the Tribunal. Boundary violations of the kind described in Stein are serious professional misconduct, and the College has a clear track record of treating them seriously. Patients who experience conduct of this kind from a physician are not required to wait for someone else to make a report.
For physicians. The case is a reminder of the two pillars of the regulatory framework that Stein engages. First, the boundaries. Physicians cannot shift the doctor-patient relationship into a personal one without ending the professional relationship and observing the cooling-off framework that the College’s policies require. The duration of the patient relationship does not soften the boundary; if anything, the longer the relationship, the more substantial the trust that has accumulated, and the more serious the breach. Second, the integrity of the investigative process. Attempting to procure false evidence from a witness is itself professional misconduct, independent of whatever the underlying allegation may be.
For other regulated health professionals subject to mandatory reporting. The mandatory reporting framework under the Health Professions Procedural Code requires regulated health professionals to report another regulated professional in defined circumstances. The framework operated as intended in Stein: a physician aware of the underlying conduct made the mandatory report, and the report triggered the investigation. The framework’s effectiveness depends on the willingness of professionals to honour the duty, including in cases where the duty falls on a colleague or a member of the same medical community.
For more on the CPSO complaints process and how Ontario patients can use it, see Should I File a CPSO Complaint Against My Doctor? For the broader landscape of complaints and reviews available to Ontario patients and families, including the regulatory colleges, the Patient Ombudsman, and the Office of the Chief Coroner, see A Patient’s Guide to Making Complaints About Health Care in Ontario.
Decision Date: September 28, 2023
Tribunal: Ontario Physicians and Surgeons Discipline Tribunal
Citation: College of Physicians and Surgeons of Ontario v Stein, 2023 ONPSDT 21 (CanLII)
