The critical decision on whether or not a patient will be forced to testify at the discipline hearing for the doctor accused of sexually abusing her now rests in the hands of a five-member discipline panel.

The lawyers for Patient A, whose name is covered by a publication ban, and for the College of Physicians and Surgeons of Ontario (CPSO) agree that the woman has relevant evidence to present, but that she refuses to attend the discipline hearing for Dr. Suganthan Kayilasanathan.

They agree on almost nothing else.

Kayilasanathan faces allegations of unprofessional conduct and of sexually abusing Patient A, which he denies. The college alleges Kayilasanathan wrote the woman two doctor's notes in the span of a week in December 2010 so that she could avoid exams, and that the two had sex at a Mississauga hotel one night during that week. Sex between doctors and patients is prohibited by law.

The patient's lawyer, Neil Perrier, has brought a motion before the discipline panel to quash the summons that was served on Patient A, which creates a legal obligation for her to testify. Should the panel rule that the summons stands, but the woman still refuses to testify, the college has said it will take the unprecedented step of going to court to seek a warrant for the patient to be arrested and brought to the college to give evidence.

Perrier argued before the panel Tuesday that the CPSO unlawfully obtained Patient A's identity as part of its investigation, and effectively coerced her into co-operating. That means the summons served on Patient A should be quashed because it was obtained through an “abuse of process,” he said.

The panel has heard that Patient A went to see another doctor in early 2011, out of concern for sexually transmitted infections, when she read a February 2011 news report that Kayilasanathan had been charged criminally with sexual assault, in a case involving another woman. (He was later acquitted by a judge.)

That doctor then reported Patient A's case to the college, as she was required to do by law, but withheld Patient A's name, as she did not receive the patient's consent to include her identity, another requirement of the law. However, several months later, a college investigator demanded that the doctor turn over Patient A's name and contact information, which she did.

Perrier said the college therefore unlawfully obtained the patient's name, and if the summons stands, it will send a “chill” to patients in Ontario who may have been sexually abused.

Patients should be able to seek treatment from other doctors for sexual abuse at the hands of physicians, he said, “without the threat of being drawn against their will into an adversarial process.”

But college lawyer Carolyn Silver, while saying the regulator sympathized with Patient A's position, argued the college has broad investigative powers under the law, including ordering that doctors turn over the names of patients alleging sexual abuse at the hands of other physicians. She also said this was upheld in a decision by a different panel of the college's discipline committee, while acknowledging that the ruling is not binding on the panel hearing the Kayilasanathan case.

“The patient's personal desire to stay out of the proceeding, because she's worried about her parents finding out about her conduct, that must give way to the college's mandate to protect the public and other patients in Ontario,” Silver said.

The panel heard from Patient A herself on Monday, who testified for the purposes of quashing the summons. Silver referred to that testimony Tuesday, saying the patient was worried her parents would find out she was partying with Kayilasanathan and a friend in December 2010 rather than studying for exams. The patient said that to this day, her parents, friends and colleagues are unaware of the college case.

Contrary to Perrier's arguments, Silver said Patient A was co-operative with the college, almost up until early November when the discipline hearing was set to begin.

She also contested Perrier's position that allowing the summons to stand could lead to the under-reporting of sexual abuse complaints to the college. She said each case must be treated based on the facts involved, and that in some instances, the public interest demands that the college order the disclosure of a patient's identity for the purposes of its investigation.

The college's position was echoed by the discipline panel's independent legal counsel, a lawyer from outside the college who provides legal advice to the panel, as they are not lawyers, but rather doctors and members of the public.

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“There was no unlawful conduct by the college in obtaining her name the way it did,” said lawyer Robert Cosman, whose advice to the panel is non-binding, after reviewing the law. “Without unlawful conduct, there is no basis to quash the summons for abuse of process.”

The panel will release their decision at a later date.