Discipline Case Summary

The following is a summary of a matter placed before a five-member panel of the of the Discipline Committee of the College of Physiotherapists of Ontario on June 3-6, August 1-2, September 9-13, 2002 and May 29, 2003.

Allegations

The College alleged that Michael Tam was guilty of professional misconduct as defined in clause 51(1)(b.1) (sexual abuse) of the Health Professions Procedural Code (the Code) and paragraphs 2 (standards of practice), 5 (abusing a patient physically and verbally), 28 (refusing to co-operate) and 25 (unprofessional conduct) of the College's Professional Misconduct Regulation. Mr. Tam was incompetent as defined in section 52 of the Code. 

Michael Tam was at the time of the alleged incidents a duly registered physiotherapist working at what is now Humber River Regional Hospital in Toronto, Ontario. The particulars of the allegations involved seven of Mr. Tam’s female co-workers – Ms. A., Ms. B., Ms. C., Ms. D., Ms. E., Ms. F., and Ms. G. Mr. Tam entered a plea of not guilty.

Allegations and Findings

1. Mr. Tam acted inappropriately with some of his female co-workers including:
   • Making inappropriate comments of a sexual nature; and,
   • Commenting inappropriately on the clothing and bodies of coworkers.
   • The panel found:
     • Ms. A. was Mr. Tam's patient. Mr. Tam undertook four to six treatments of Ms. A. relating to her PMS. Mr. Tam made inappropriate comments of a sexual nature and committed acts of sexual abuse as defined in the Code, for "behaviour or remarks of a sexual nature by the member towards the patient."
     • Mr. Tam acted unprofessionally in his relationship with his co-workers; and was guilty of professional misconduct in that he engaged in conduct that was disgraceful, dishonourable or unprofessional.
   • Inappropriate and unsolicited touching, including unannounced back and neck massages and touching of hair, hands, legs and knees. The panel found Mr. Tam guilty of sexual abuse as per the Code, in that he touched these patients in a sexual manner.
   • Touching Ms. A. with his pelvis and touching Ms. A. in the genital area. The panel found Mr. Tam guilty of sexual abuse. There was no clinical justification for the touching.
   • Inappropriate behaviour and gestures including chasing a co-worker with a stethoscope and listening to her chest, movements of his lips and tongue, and taking or offering to take pictures of them. The panel found Mr. Tam's actions were sexually suggestive and his conduct to be unprofessional.
   • Providing inappropriate treatment to his co-workers, such as acupuncture and massages, including after he was asked to cease doing so by his employer.
   • Providing inappropriate treatment to his co-workers including improper draping and choosing unnecessarily intimate sites for needle placement and touching.
   • The panel found:
   • Mr. Tam engaged in professional and sexual misconduct because the massages he provided unnecessarily touched the patients’ private areas.
   • Mr. Tam failed to maintain standards and committed acts of unprofessional conduct. He did not drape his patients appropriately, nor did he obtain proper, informed consent.
2. Mr. Tam's response to the College's investigation included inaccurate information about his techniques, therapies and theories of treatment, including acupuncture and certain types of massage therapy.
   • The panel did not find Mr. Tam guilty of professional misconduct for failing without cause to provide a report or a certificate relating to an exam or treatment performed by the member. He did not try to fabricate his case summary as his patient notes.
3. Mr. Tam is incompetent as defined in section 52 of the Health Professions Procedural Code. The panel found Mr. Tam to be incompetent in that his professional care of his patients "displayed a lack of knowledge, skill or judgment or disregard for the welfare of the patient of a nature or to an extent that demonstrates that the member is unfit to continue to practice or that the member's practice should be restricted."

• Mr. Tam failed to adequately drape Ms. A. especially during her last treatment. He showed insufficient regard for her dignity or privacy.
• Ms. A.'s lack of understanding of acupuncture and the other treatment that Mr. Tam provided demonstrates that Mr. Tam failed to obtain proper informed consent.
• Mr. Tam admitted that he kept no formal notes or assessments or progress notes on the co-workers that he treated. The Standard of Practice for Record Keeping as outlined by the College of Physiotherapists of Ontario is that a physiotherapist must make a record once a client has an initial assessment and at each repeat visit until discharge. He therefore failed to maintain proper standards of practice regarding record keeping and charting as required by the regulations.
• Mr. Tam displayed very poor judgment in repeatedly offering to treat his co-workers, as he crossed the boundaries between colleague and patient.
• Mr. Tam committed serious boundary violations in his treatment of Ms. A. As a physiotherapist and Ms. A.'s senior he held a position of perceived authority over Ms. A. who was a physiotherapy assistant. Ms. A. trusted Mr. Tam and believed in him. He violated this trust.

Based upon the testimony heard and the findings described above, the panel found Mr. Tam guilty of professional misconduct as defined in clause 51(1)(b.1) (sexual abuse) of the Health Professions Procedural Code and paragraphs 2 (standards of practice), 5 (abusing a patient physically and verbally), and 25 (unprofessional conduct) of the College's Professional Misconduct Regulation. 

Witnesses consistently described his persistent behaviour, language of a sexual nature, unwanted touching, and persistent offers to provide acupuncture and massage. Although actively discouraged, Mr. Tam persisted in his conduct. 

Regardless of the work environment, and regardless of the record keeping practices of expert practitioners of TCM who testified, Mr. Tam, as a physiotherapist, is governed by the rules of the College of Physiotherapists of Ontario. Mr. Tam crossed boundaries and acted inappropriately with his co-workers and with those co-workers whom he treated and thus became his patients. 

Penalty and Cost

1. To appear before the panel to be reprimanded
2. Certificate of Registration to be suspended for six months. Three months of that will be suspended provided that Mr. Tam satisfies paragraphs #3 – 5 below.
3. Successfully complete, at his own expense not to exceed $5,000 per course, a course of remediation in standards of practice including record keeping, informed consent, and draping. Successfully complete, at his own expense, a course of remediation regarding maintenance of boundaries and the prevention of sexual abuse.
4. To be monitored over two years by the College, in nine sessions, at his own expense not to exceed $250 per session.
5. Reimburse the College for funding provided for patients that the panel has found that he has sexually abused, pursuant to the program required under section 85.7 of the Code, and to post security by September 1st, 2003 to a maximum of $5000.
6. For a period of two years after resuming practice, Mr. Tam cannot act as a supervisor for students or a holder of a supervised practice Certificate of Registration, or under any arrangement in which a supervisor is required for another member.
7. Pay costs to the College of $25,000 n five equal installments over five years.

In determining an appropriate penalty, the Discipline Committee panel considered the 

• Protection of the public
• General deterrence to the membership
• Specific deterrence to the member, Mr. Tam

The panel reasoned as follows: 

• Mr. Tam could be rehabilitated, therefore revocation of his license was not required to protect the public. He had already completed a half-day course on boundaries at the request of his employer. Since then, there has been no impropriety on his part.
• Mr. Tam was suspended from his practice at the hospital at the time of the decision dated February 24, 2003, and had not worked since then.
• The panel took into account findings and penalty orders in other cases of sexual abuse and professional misconduct for similar events.
• What Mr. Tam did was serious and inappropriate and while not on the most egregious end of sexual abuse, still warranted a serious penalty.
• Mr. Tam’s 22-year career as a physiotherapist, which was previously unblemished and that he has suffered hugely as a result of his actions.
• The public will be protected by the penalty order imposed and the member, after satisfying all the conditions of his penalty, may be returned to practice.
• The penalty order satisfies the needs of specific deterrence of future misconduct by Mr. Tam and general deterrence of other members of the profession.
• Mr. Tam’s misconduct was serious and intentional.

The panel's decision and reasons on the allegations was issued on February 24, 2003 and the penalty decision and reasons was issued on July 23, 2003.