On November 29, 2019, on the basis of an Agreed Statement of Facts and Admission (Liability), the Discipline Committee found that Dr. Paul Maurice Joseph Malette committed an act of professional misconduct in that he engaged in acts or omissions relevant to the practice of medicine that, having regard to all circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional.
Dr. Malette is a 63-year-old family physician practicing in Val Caron, Ontario. He obtained his certificate of registration authorizing independent practice from the College in 1985. Dr. Malette was Patient A’s family physician for many years. During the time she was his patient, Patient A suffered from a number of health challenges.
In approximately 2005, Dr. Malette began hugging Patient A at the end of every appointment. These hugs occurred in Dr. Malette’s examination room. During some hugs, Dr. Malette’s cheek and/or lips made contact with Patient A’s cheek, giving Patient A the impression that he was trying to kiss her. Unbeknownst to Dr. Malette, the hugs were unwelcomed by Patient A, and they made her feel extremely uncomfortable.
In September 2008, the College revised its policy on Maintaining Appropriate Boundaries and Preventing Sexual Abuse to include the guideline that physicians should avoid physical contact with patients except where required to perform medically necessary examinations. Dr. Malette’s routine hugging of Patient A was not in compliance with the College’s policy from September 2008 onwards.
Patient A’s medical records indicate that in 2009, Patient A complained to Dr. Malette of loss of libido and loss of sensation in her genital area. She subsequently returned to Dr. Malette with a complaint of numbness in the genitals inhibiting sexual functioning. Dr. Malette examined Patient A’s genitals. His examination included a bimanual examination, a Pap test, and palpation of Patient A’s vulva and clitoris. While he was palpating her genitals, Dr. Malette asked Patient A to compare the loss of sensation she was experiencing during his examination with the loss of sensation she experienced during sexual intercourse with her husband. Patient A was upset by his question. Dr. Malette did not adequately explain the examination and the purpose of his question to Patient A prior to the examination. The inadequate explanation caused Patient A to be alarmed. Dr. Malette hugged Patient A at the end of this appointment.
Though Patient A remained Dr. Malette’s patient for several years, she did not return to him for another pelvic examination. Her next Pap test was not until six years later, with a female registered practical nurse.
The College retained Dr. Carolyn Borins, a family physician, to opine as to whether Dr. Malette’s behaviour and remarks were of a clinical nature appropriate to the service provided. Dr. Borins opined that it is inappropriate of physicians to routinely initiate hugs of patients. Such hugs constitute an inappropriate boundary crossing, as there is a power differential inherent in the physician patient relationship. Hugs can be interpreted by patients in different ways, and even if a hug is well-intentioned, physicians cannot predict how the patient will interpret the hug.
While showing comfort to patients is important, physicians can demonstrate caring and empathy in other ways to ensure no boundaries are crossed. Dr. Borins further opined that it is inappropriate to ask a patient to compare clinical touching to touching of a sexual nature by a romantic partner. Touching of a clinical nature is distinct from sexual touching, and the two are not comparable. Asking for such a comparison risks giving the patient the impression that the physician’s touch is of a sexual nature.
DISPOSITION
On November 29, 2019, in addition to its finding set out in paragraph 1 of its Order, the Discipline Committee ordered:
2. Dr. Malette attend before the panel to be reprimanded.
3. The Registrar to suspend Dr. Malette’s certificate of registration for a period of three (3) months, commencing on December 16, 2019 at 12:01 a.m.
4. The Registrar to place the following terms, conditions and limitations on Dr. Malette’s certificate of registration:
Suspension
(a) Dr. Malette shall comply with the College Policy “Closing a Medical Practice.”
PROBE
(b) Dr. Malette shall participate in the PROBE Ethics & Boundaries Program offered by the Centre for Personalized Education for Professionals, by receiving a passing evaluation or grade, without any condition or qualification. Dr. Malette will complete the PROBE program within six (6) months of the date of the Order, and will provide proof to the College of his completion, including proof of registration and attendance and participant assessment reports, within one (1) month of completing it.
Practice Monitor
(c) Dr. Malette shall not conduct any pelvic, genital and/or rectal examination of any patient, of any age, in any jurisdiction, unless the examination takes place in the continuous presence and under the continuous observation of a monitor who is a regulated health professional acceptable to the College under paragraphs 4(d) and 4(e) below.
(d) In respect of his office-based practice (City of Lakes Family Health Team – Val Caron Clinic), Dr. Malette shall retain a Practice Monitor acceptable to the College who has executed the Practice Monitor’s undertaking in the form attached to the Order as Appendix “A”.
(e) In respect of his hospital-based practice (Health Sciences North – Sudbury), Dr. Malette shall retain a Supervising Practice Monitor acceptable to the College who has executed the Supervising Practice Monitor’s undertaking in the form attached to the Order as Appendix “B”.
(f) Dr. Malette shall inform his patients of the indication for any pelvic, genital and/or rectal examination that he may perform, and shall document the discussion in the corresponding patient chart.
(g) Dr. Malette shall ensure that both in respect of his office-based practice and his hospital-based practice the Practice Monitors maintain a log of all pelvic, genital and/or rectal examinations he conducts in the form attached to the Order as Appendix “B,” including listing the indication Dr. Malette described to his patient for any pelvic, genital and/or rectal examination performed and confirming that Dr. Malette has documented the discussion in the corresponding patient chart. Dr. Malette shall maintain up to date copies of the Logs by ensuring copies are made at the end of each business day, and shall make them available to the College upon request. Dr. Malette shall ensure that the original Logs are submitted to the College on a monthly basis.
(h) Dr. Malette shall ensure that each patient with whom he intends to conduct a pelvic, genital and/or rectal examination is directly notified, prior to the examination, of the details of the restriction described in paragraph 4(c).
(i) Dr. Malette shall post a sign in all waiting rooms, examination rooms and consulting rooms of his office-based practice in a clearly visible and secure location, in the form set out in Appendix “C”, that states: “Dr. Paul Malette must not conduct pelvic, genital and/or rectal examinations of any kind unless in the continuous presence of and under the continuous observation of a practice monitor acceptable to the College of Physicians and Surgeons of Ontario. Dr. Malette must not be alone with patients during pelvic, genital and/or rectal examinations. Further information may be found on the College website at www.cpso.on.ca.”
(j) Dr. Malette shall provide each patient with whom he intends to conduct a pelvic, genital and/or rectal examination in his hospital-based practice with a copy of the sign in the form set out at Appendix “C” to the Order. Dr. Malette shall ensure that prior to the pelvic, genital and/or rectal examination, the patient (or their next of kin if the patient is incapable) initials the sign, along with the date of their signature, and that a copy of the initialed and dated sign is maintained in the patient chart.
(k) Dr. Malette shall obtain a certified translation, in any language in which he provides services, of the sign described in paragraph 4(i). He shall post it in all waiting rooms, examination rooms and consulting rooms, in all of his office-based practice locations, in a clearly visible and secure location, in the form set out at Appendix “C” to the Order. He shall have copies readily available to him in his hospital-based practice, in the form set out at Appendix “C” to the Order.
(l) Dr. Malette shall provide the certified translation described in paragraph 4(k), to the College within thirty (30) days of the date of the Order.
(m)Dr. Malette shall inform the College of each and every location at which he practises or has privileges including, but not limited to hospitals, clinics, offices, and any Independent Health Facilities with which Dr. Malette is affiliated, in any jurisdiction (collectively “Practice Location” or “Practice Locations”), within five days of the Order. Going forward, Dr. Malette shall undertake to inform the College of any and all new Practice Locations within five days of commencing practice at that location. If Dr. Malette carries on an office- or clinic-based practice at a new Practice Location, the provisions of paragraphs 4(c), (d), (f), (g), (h), (i), (k), and (l) above describe the practice monitoring arrangements that will be required at that location. If Dr. Malette carries on a hospital-based practice involving seeing in-patients and/or emergency department patients at a new
Practice Location, the provisions of paragraph 4(c), (e), (f), (g), (h), (j), (k), and (l) above describe the practice monitoring requirements that will be required that that location.
(n) Dr. Malette shall submit to and shall not interfere with unannounced inspections of his Practice Locations and to the inspection of patient records by the College and to any other activity the College deems necessary in order to monitor his compliance with the provisions of the Order.
(o) Dr. Malette shall execute the OHIP consent form, in the form attached at Appendix “E” to the Order.
5. Dr. Malette to pay costs to the College in the amount of $10,370 within 30 days of the date of the Order.