On August 27, 2018, the Discipline Committee found that Dr. Nigel Mark Phipps committed an act of professional misconduct, in that he has engaged in the sexual abuse of patients, and in that he has engaged an act or omission relevant to the practice of medicine that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional.
Allegations referred by Notices of Hearing dated September 7, 2016 and October 11, 2017, were dealt with in one hearing.
Sexual Abuse of Patients
In this matter, the allegation of sexual abuse referred to touching of a sexual nature, and behaviour or remarks of a sexual nature, by the member towards a patient. To establish sexual abuse of a patient by a member, the definition specifies that the touching, behaviour or remarks at issue must be of a ‘sexual nature’ and not of a clinical nature appropriate to the service provided.
Dr. Phipps is a family physician. Dr. Phipps did not contest that the eleven individuals were patients at the relevant times.
During the period late August to early October 2014, Dr. Phipps showed one or more naked photographs of himself to eleven female patients during clinical visits. The women had been long-term patients of Dr. Phipps. They had trusted Dr. Phipps. In many instances, the women were shown a photograph in which Dr. Phipps’ penis was erect or semi-erect. Often, he used the pretext of an apparently innocuous story from a golf trip he had taken more than two years before showing the photos. Some patients were shown naked photographs that had nothing to do with the golf trip and that Dr. Phipps took later at his home.
The Committee found that Dr. Phipps’ conduct in showing one or more naked photographs of himself to each of eleven patients constitutes behaviour of a sexual nature towards a patient. The Committee therefore found that Dr. Phipps sexually abused each of the eleven patients.
The Committee found that Dr. Phipps was sexually aroused after showing the photos to two of the patients (Patient B) and (Patient A). The Committee therefore found that Dr. Phipps sexually abused Patient B and Patient A by becoming sexually aroused during his interactions with each of these patients.
Dr. Phipps acknowledged that he made comments to two patients to the effect that ‘I’ve seen yours, now you’ve seen mine’ or ‘I’ve seen you naked, now you’ve seen me naked’ (Patients C, I). In addition, Patient B testified that Dr. Phipps said to her as she was leaving, ‘Now you know more about me than most of my patients.’ Further, Patient A testified that Dr. Phipps said to her, ‘Ain’t I well-endowed for a man my age’ after showing her the full-frontal photograph. The Committee found that each of these comments is remarks of a sexual nature and constitutes sexual abuse. Given the context in which each comment was made, specifically after Dr. Phipps had shown each patient a naked photograph of himself, the Committee found that an objective observer would conclude that each of these comments further sexualized the encounter with these four patients and constitutes sexual abuse.
Patient A testified that on the date of the visit when Dr. Phipps showed her his naked photograph, she was also examined by Dr. Phipps. She was seated on the examining table, Dr. Phipps stood facing her, leaned forward slightly, and pressed on her ribs with his right hand while lifting her top with his left hand. It was as he was leaning in that Patient A felt what she believed was an erection. She was adamant that it was Dr. Phipps’ erect penis that she felt. The Committee found that Dr. Phipps engaged in touching of a sexual nature of Patient A when he touched her leg with his erect penis during the physical examination conducted after he had shown her the full-frontal photograph.
Disgraceful, Dishonourable or Unprofessional Conduct
Dr. Phipps admitted that he engaged in an act or omission relevant to the practice of medicine that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable, or unprofessional.
Dr. Phipps showed naked photographs of himself to eleven patients, made remarks of a sexual nature to four patients, became sexually aroused during the encounters with two patients and touched one patient in a sexual manner. He engaged in this conduct with patients who had come to trust him over many years.
Trust is the cornerstone of the physician-patient relationship. When a patient seeks care from a physician, the patient trusts that the physician is a professional and will treat her in a professional manner. Physicians must establish and maintain appropriate professional boundaries with patients or the professional relationship is jeopardized and patients are at risk of great harm. Violations of such boundaries, particularly of a sexual nature, can engender in patients a loss of trust in the physician and in the health professions and feelings of betrayal, victimization, anger, shame and guilt. Sexualizing the relationship and sharing highly personal and private material represent a clear and profound breach of trust, and would be viewed by members of the profession as disgraceful, dishonourable and unprofessional conduct.
Dr. Phipps also showed naked photographs of himself to three staff members. Dr. Phipps was in a position of authority with respect to the staff at the clinic. His behaviour in sharing naked photographs of himself with clinic staff was wholly inappropriate and unacceptable. In the Committee’s view, it rose well above the level of unacceptable into disgraceful, dishonourable and unprofessional conduct based on the highly personal and private nature of the material and the intent to embarrass. However, whether or not the staff were uncomfortable, shocked or otherwise adversely affected is not relevant; conduct need not be harmful to be unprofessional.
There are boundaries to physicians’ behaviour towards patients, colleagues, coworkers and the public. Physicians are expected to strictly maintain those boundaries and if they do not do so, they should expect to be judged adversely. Boundaries in a physician’s workplace are essential so as to provide an atmosphere of safety and respect for all. They help control and address issues of workplace harassment, workplace safety, and power imbalance in settings that are often fast-paced, intense, and stressful. Dr. Phipps’ conduct crossed such boundaries and constitutes disgraceful, dishonourable, and unprofessional conduct. It cannot be tolerated.
The Committee accepted Dr. Phipps admission and found that he committed an act of professional misconduct in that he has engaged in disgraceful, dishonourable and unprofessional conduct in relation to eleven patients and three clinic staff.
DISPOSITION
On September 18, 2019, the Committee ordered and directed that:
- The Registrar suspend Dr. Phipps’s certificate of registration for a period of fourteen (14)months, commencing on October 1, 2019.
- The Registrar place the following terms, conditions and limitations on Dr. Phipps’s certificate of registration:
o Dr Phipps shall not engage in any professional encounters, in person or otherwise (“Professional Encounters)”), with patients of any age, in any jurisdiction, unless the Professional Encounter takes place in the continuous presence and under the continuous observation of a monitor who is a regulated health professional acceptable to the College (the “Practice Monitor”). At all times, Dr. Phipps shall ensure that the Practice Monitor shall:
- Remain in the examination room or consultation room at all times during all professional encounters with patients, even if another person is accompanying the patient;
- Carefully observe all of his physical examinations with an unobstructed view of the examination;
- Refrain from performing any other functions, except those required in the Practice - Monitor’s undertaking attached as Appendix “A” (the “Practice Monitor’s Undertaking”), while observing him in all his professional encounters with patients;
- Keep a patient log in the form attached as Appendix “B” to this Order of all the patients with whom Dr. Phipps has an in-person professional encounter in the Practice Monitor’s presence (the “Log”);
- Initial the corresponding entry in the records of each patient noted in the Log to - confirm that the Practice Monitor was in the presence of Dr. Phipps at all times during in-person professional encounter;
- Submit the original Log to the College on a monthly basis; and
- Provide reports (as described in the Practice Monitor’s Undertaking) to the College on at least a monthly basis.
o Dr. Phipps shall post a sign in each of his examination and consultations rooms that states: “Dr. Nigel Mark Phipps must not have professional encounters, in person or otherwise, with patients, 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. Phipps must not be alone with patients in any examination or consulting room. Further information may be found on the College website at www.cpso.on.ca;”
o Dr. Phipps shall continue therapy with a College-approved psychiatrist, who shall provide written reports to the College quarterly for two years and thereafter, every six (6) months. Dr. Phipps shall meet with the psychiatrist as often as recommended by the psychiatrist;
o Dr. Phipps shall inform the College of each and every location where he practices, in any jurisdiction (“Practice Location(s)”) within five (5) days of commencing practice at that location; and
o Dr. Phipps shall be responsible for all costs associated with implementing the terms of this Order.
- Dr. Phipps shall reimburse the College funding under the program required under section 85.7 of - the Code with respect to eleven (11) patients, by posting an irrevocable letter of credit or other security acceptable to the College, within thirty (30) days of this order in the amount of $176,660.00.
- Dr. Phipps attend before the panel to be reprimanded.
- If the parties cannot agree on costs, the Committee will consider written submissions on costs to be delivered by counsel for Dr. Phipps and the College by September 30, 2019 and then each party may deliver its response in writing by October 7, 2019.
COSTS
- On October 11, 2019, the Discipline Committee ordered that Dr. Phipps pay costs to the College in the amount of $32,370.00 within 60 days of the date of this Order.
Terms and conditions imposed on certificate by: Member