Indexed as: Valencia (Re) THE DISCIPLINE COMMITTEE OF THE COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO IN THE MATTER OF a Hearing directed by the Complaints Committee of the College of Physicians and Surgeons of Ontario, pursuant to Section 58(2) of the Health Disciplines Act, R.S.O. 1990 c. H.4 BETWEEN: THE COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO - and - DR. HECTOR VALENCIA PANEL MEMBERS: DR. D. BRADEN (CHAIR) DR. R. DOBSON DR. L. ROBINSON DR. B. HAMMOND MS. J. McSKIMMINGS HEARING DATE: SEPTEMBER 6, 1994 DECISION/RELEASE DATE: FEBRUARY 3, 1995
DECISION AND REASONS FOR DECISION This matter came before the Discipline Committee of the College of Physicians and Surgeons of Ontario at Toronto on September 6, 1994. The Allegations 1. It was alleged in the Notice of Hearing that Dr. Valencia did during the period on or about June 16, 1992 to on or about September 30, 1992 commit sexual impropriety with a patient, Ms. OQP, which is professional misconduct under paragraph 30 of Section 29 of Regulation 548 as amended made under Part III (Medicine)of the Health Disciplines Act, 1990 and Section 61(3)(c) of the said Act. 2. It is further alleged that Dr. Valencia did during the period on or about June 16, 1992 to on or about September 30, 1992 engage in conduct relevant to the practice of medicine that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, which is professional misconduct under paragraph 33 of Section 29 of Regulation 548 as amended under Part III (Medicine) of the Health Disciplines Act, 1990 and Section 61(3)(c) of the said Act. 3. It is further alleged that Dr. Valencia, on or about October 11, 1992 did engage in conduct relevant to the practice of medicine that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional which is professional misconduct under paragraph 33 of Section 29 of Regulation 548 as amended under Part III (Medicine) of the Health Disciplines Act, 1990, and Section 61(3)(c) of the said Act. Dr. Valencia, through his counsel, entered a plea of guilty to the first allegation. The Case for the College An Agreed Statement of Facts was submitted to the Committee as Exhibit 2 and read as follows:
3 (1) Dr. Valencia was a resident working on the Psychiatric Unit of Hospital HFU during the period June 16, 1992 to September 30, 1992. (2) On June 16, 1992, the patient was admitted to the Unit, under the care of a psychiatrist, Dr. AJC. The patient was suicidal and had a provisional diagnosis of adjustment disorder with depressed mood. She was known to have been diagnosed previously as personality disorder (borderline type). (3) In his capacity as a resident, Dr. Valencia was introduced to the patient and began treating her. This included conducting therapy sessions with her. (4) As the summer progressed, the sessions became longer and Dr. Valencia began seeing the patient on a daily basis, including on days when he was on call or off duty. It is Dr. Valencia's position that during the course of treatment, he had fallen in love with the patient. (5) Dr. Valencia's relationship with the patient expanded beyond that of doctor and patient. He became involved in assisting her with financial advice. On September 14, 1992, he drove her to a bank and then to her home where he socialized with her. (6) On September 17, 1992, Dr. Valencia told the patient that he had feelings for her which he was having difficulty controlling, that he could not keep his hands off her, and that he thought he should stop being her therapist. The patient told him that she too had some feelings but was not sure of what they were. Around this time, Dr. Valencia gave the patient his home telephone number and asked for hers in return. (7) Dr. Valencia arranged for the patient to have a day pass, which she exercised on September 20, 1992. Dr. Valencia went to her home that afternoon and picked her up in his car. He took her for a drive. While they were out, some sexual
4 contact took place, including kissing and hugging. (8) Dr. Valencia again arranged for a day pass for the patient, which she exercised on September 22, 1992. He telephoned her at home that day, and arranged to go to her home after her brother left for work. After arriving at the house, Dr. Valencia had sexual intercourse with the patient in her bedroom. The patient had been drinking that day. (9) On September 25, 1992, when confronted by the patient's sister about what had gone on, Dr. Valencia acknowledged the relationship and the fact he had told the patient that he loved her. He told the patient's sister he knew he could lose his profession over this matter. (10) On September 26, 1992, Dr. Valencia admitted to his supervisor, Dr. AJC, that he had taken the patient to a park and kissed her on one occasion, and that he had sexual intercourse with her in her bedroom on a subsequent occasion. He told Dr. AJC that he loved the patient. Dr. Valencia also told Dr. ZPO that he had strong feelings for the patient and had sexual intercourse with her at her home. (11) On September 30, 1992, Dr. Valencia was placed on leave of absence with pay. On October 29, 1992, he was dismissed from the postgraduate program in psychiatry at University POU. (12) After Dr. Valencia admitted to his supervisor, Dr. AJC, that he had sexual intercourse with the patient, he was instructed to have no further contact with her. Despite those instructions, on October 11, 1992, Dr. Valencia took birthday gifts to the patient's house. He told the patient's brother not to reveal to her that he was the source of the gifts. The Committee found the physician guilty of the first allegation in the Notice of Hearing. The Committee was advised that the physician was desirous of being present at some future date for the purpose of determining penalty.
5 Counsel for the College indicated that the College would be seeking revocation and that the physician would be seeking a period of suspension. Counsel for the College asked for a ruling under Section 45 for an order prohibiting publication of the name of the complainant. This Order was given and the reasons for this are presented: In this matter, the physician has been charged with sexual impropriety with a patient. The name of the complainant is contained in the Statement of Agreed Facts filed as Exhibit 2 in these proceedings. It is apparent from the other facts recited in Exhibit 2 that the complainant has been under psychiatric care. In the circumstances, the Committee was requested to make an order under Section 45(3) preventing public disclosure and banning publication of the name of the complainant. The Committee's authority to make such an order arises under Section 45(2)(b) of the HPPC. The Committee is satisfied that the desirability of avoiding public disclosure of the name of the complainant in her interest outweighs the desirability of adhering to the principle that hearings and information presented at them be open to the public. Accordingly, while the Committee is not making an order that the public be excluded from the hearing (nor was it requested to do so) the Committee does order that there be no public disclosure or publication of the name of the complainant. The Committee was advised that the physician was unable to attend this hearing because of financial problems, but that he wished to attend the penalty phase of the hearing. Although the Committee would normally have dealt with Dr. Valencia's penalty immediately (in light of his guilty plea), it agreed to adjourn the hearing 'sine die' so that the physician could be present.
6 The Committee reconvened on February 3, 1995. The Committee was advised that counsel for the defence was ill and that Mr. SZO would be acting on behalf of Dr. Valencia. Notwithstanding Dr. Valencia's request to be present, the Committee was advised that Dr. Valencia was not present and that he was financially unable to attend. A joint submission for penalty was submitted to the Committee for its consideration. The joint submission suggested revocation with a proviso that the physician be at liberty to apply for reinstatement after one year. Submission by the Prosecution It was noted for the Committee that in fact no Certificate issued by the College was in effect. This was the case because Dr. Valencia had held an educational licence and that certificate had been cancelled when Dr. Valencia was dismissed from the residency program in psychiatry at University POU in October 1992. Notwithstanding, the College considered it important to proceed given the seriousness of the offence, and it sought an order that Dr. Valencia's Certificate of Registration would have been revoked (had it been held by him) on the facts of this case. Prosecution counsel briefly summarized the Agreed Statement of Facts submitted at the original sitting of the hearing. Counsel went on to state that it was her submission that Dr. Valencia had been involved in the most serious act of sexual impropriety with a patient under his care at the time. The patient was entitled to proper care and protection in the hospital setting and Dr. Valencia's behaviour was a grave betrayal of trust.
7 It was noted by prosecution counsel that the report of the Task Force on Sexual Abuse of Patients by Physicians had been published when the events in this case took place. It was further noted that this report had been widely known at the time and undoubtedly was known to Dr. Valencia. Prosecution counsel stated that Dr. Valencia had reported his behaviour to his supervisor because his behaviour had been known to the sister of the patient and that this was the reason for Dr. Valencia admitting the activity to his supervisor. Counsel also noted that the physician had terminated therapy only after the alleged events had become known rather than before. The great harm to the patient generated by these events was noted by prosecution counsel as well as the harm to the profession. She stated that the principle of sentencing that should merit most immediate attention was that of general deterrence. The profession should be made aware that this behaviour is considered unacceptable and the suitable penalty was revocation. Prosecution counsel advised the Committee that Counts 2 and 3 of the Amended Notice of Hearing were not being pursued by the College. She called the attention of the Committee to Exhibit 3 (Impact Statement of the complainant). Submissions by the Defence Defence counsel, speaking on behalf of the physician, indicated that the seriousness of the offence was accepted. He said that the physician had lost his position and lost his family. He is undergoing divorce proceedings and has little contact with his now teenaged children. Defence counsel stated that the confrontation with the sister of the patient was not the sole reason for Dr. Valencia admitting his behaviour to his supervisor. The physician he said did not deny to the sister that the events had occurred, but rather, had admitted them "right up front".
8 Defence counsel called the Committee's attention to Exhibits 4 and 5, (report from Dr. MYR and letter of support from Dr. KJU). He stated that the physician was not likely to repeat such an offence and noted that at the time of the events the physician was under great stress. The disastrous consequences to the patient were noted and it was stated that no evidence suggested any similar facts coming forward. Defence counsel asked the Committee to give consideration to the joint submission on penalty. Prosecution counsel pointed out to the Committee that the therapy summarized by Dr. MYR had ceased by August of 1993. DECISION AND REASONS FOR THE DECISION The Committee accepts the physician's plea of guilty to the first count in the Amended Notice of Hearing. Dr. Valencia had engaged in sexual intercourse with a patient under his care at the time. The patient had been hospitalized for treatment and Dr. Valencia, in the course of attending her as a resident in psychiatry, had transgressed the professional relationship and had entered into a course of behaviour that was not related to her psychiatric care and treatment. As for example, in August 1992 he gave her advice on investments and budgeting and drove her to do her banking. He expressed to her that he had feelings for her and shortly after he told her of his unsatisfactory marriage and then he made sexual overtures to her, culminating in sexual intercourse. These events took place after the publication of the Report of the Task Force and it should have been known to the physician that such behaviour was totally unacceptable.
9 The physician, after revealing his behaviour to his supervisor, was advised to break off treatment and to avoid contact with the patient. In spite of these directions, the physician some days later, went to the home of the patient to leave some gifts for her birthday. He asked the brother of the patient not to reveal to her the source of the gifts. It is the opinion of the Committee that the only appropriate penalty for this most serious breach of trust would be the immediate revocation of Dr. Valencia's Certificate of Registration, if in fact such had been held. It is the view of the Committee that it is of the utmost importance to demonstrate clearly to the profession, and to the public we serve, that this behaviour is not to be tolerated and that it merits the most serious of penalties. Had Dr. Valencia's Educational Licence or Certificate of Registration been in force, the Committee would have ordered the revocation pursuant to the Health Disciplines Act, Section 61(5)(a) effective immediately.