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Focus: Did province overreach in crackdown on sexual abuse?

Focus on: Health & Life Sciences Law
|Written By Michael McKiernan

Health lawyers say the provincial government may have overreached in its legislative crackdown on sexual abuse by medical professionals.

Bill 87, the Protecting Patients Act, is currently undergoing review in the committee stage at Ontario’s legislature after passing second reading.

The existing Regulated Health Professions Act already contains provisions mandating the revocation of licences for practitioners found to have sexually abused their patients through a variety of listed acts, including sexual intercourse.

However, a series of recent high-profile cases highlighted gaps in the list, when doctors were allowed to keep practising even after discipline panels found they had groped their patients.

The new law would expand the list to include automatic bans for professionals found guilty of sexual touching of a patient’s genitals, anus, breasts or buttocks; a move the province’s ministry of health and long-term care said would “further reinforce a zero-tolerance policy on patient sexual abuse by any regulated health professional.”  

But Elyse Sunshine, a lawyer with health law boutique Rosen Sunshine LLP in Toronto, says self-regulating bodies need to retain some discretion to account for the wide spectrum of scenarios that could result in sexual contact between health workers and people they once treated.

For example, she says the broad definition of a “patient” in the new law would capture even brief, one-time interactions between injured people and the hospital workers they cycle through during an emergency room visit.

“If a person goes into hospital with a broken arm, a radiologist may take an X-ray. Say they started dating after an appropriate cooling-off period; that kind of sexual contact would be treated in the same way as a case involving someone in a long-term doctor-patient relationship with their family doctor,” Sunshine says. “It’s concerning that there wouldn’t be any discretion to look at the factors that could be relevant in individual cases. There are hard cases, but I think, historically, regulatory bodies have generally done a very good job making difficult decisions that affect their members and the public.”

If passed, the new law would also remove colleges’ ability to impose gender-based restrictions on licensees as conditions of their continued practice, as well as boost fines for individuals and organizations that fail to report allegations of patient sexual abuse.

Some of the amendments stem from the recommendations of a ministerial task force on the subject, commissioned in late 2014 following a series of news reports about apparently lenient penalties for professionals found guilty of sexual abuse in regulatory proceedings.   

Earlier this year, the issue returned to the spotlight when the Divisional Court ordered a fresh penalty hearing for Javad Peirovy, a Toronto doctor found guilty of groping four walk-in clinic patients by the discipline committee of the College of Physicians and Surgeons of Ontario.

The six-month suspension handed down by the committee to Peirovy, who maintains his innocence, was “clearly unfit,” the Divisional Court found in its January decision in College of Physicians and Surgeons of Ontario v Peirovy.

Although Peirovy’s counsel was able to provide a number of previous decisions that suggested the sentence was within the range of reasonable outcomes, Ontario Superior Court Justice James Ramsay, writing for the unanimous three-judge panel, said the plethora of similar cases instead cast doubt on the CPSO discipline committee’s “approach to eradicating sexual abuse in the profession,” calling them “depressing to review.”

“Consistency in the imposition of sentence is a proper consideration, but a litany of clearly unfit penalties does not justify the penalty imposed in the present case. The penalty imposed in the present case was clearly unfit,” Ramsay concluded.

Lindsay Kantor, a health lawyer with Torkin Manes LLP who frequently represents health professionals in regulatory proceedings, says she’s concerned with the “one-size-fits-all” approach taken by the province in the bill, which will apply equally to all 26 of Ontario’s self-regulated health professions.  

“What may be necessary in one profession may not be necessary in another,” she says. “Whether or not this was a problem that needed to be dealt with, the way the government has gone about attempting to fix it may create additional ones.”

Even within occupations, Kantor says, some specialties are more likely than others to require physical contact with patients. She worries that mandatory penalties may chill them from providing services that they would otherwise recommend for fear it could be considered sexual touching.

“Some are probably going to be more wary of conducting certain treatments or procedures or of treating certain members of the population,” Kantor says. “That’s good for neither the professions nor the public.”  

Doctors have also voiced their concerns about the proposed changes through the Ontario Medical Association, which has labelled the bill “deeply flawed.” Spokeswoman Rachel Forman said in a statement that the organization supports the goal of the legislation to stamp out sexual abuse, but she said it could be improved with more input from physicians.

“Proposed changes must simultaneously protect patients and afford physicians access to a just and fair process through the College of Physicians and Surgeons of Ontario; Bill 87 compromises this,” Forman added.

She also said she was alarmed by provisions that would give the province’s health minister access to the personal health information of individual doctors under investigation by their regulator.

“The government has provided no clear purpose for this power or limits on when or how much information they can access. Physicians and other health-care providers are citizens and patients and are entitled to a reasonable expectation of privacy,” Forman added.  

The bill would also give the minister the power to dictate the composition of discipline panels, including setting the balance between practising professionals and lay members. Kantor says lay members provide a useful perspective on panels, but that over-representation could cause problems.

“You could arguably see panels which would consist entirely of members of the public. That would be concerning, since this is supposed to be a self-regulatory regime,” she says.

Bill 87 also expands the scope of information that health profession regulators must report on members listed in their online registries. Remedial continuing education referrals and the status of discipline referrals must now appear online, in addition to synopses of existing discipline and incapacity decisions, regardless of whether the allegations were proven.    

Colleges including the CPSO had already begun posting some of the information bill 87 would make compulsory, generating some controversy among licensees, according to Sunshine.

“There have been concerns on the part of professionals about the procedural fairness of making public things like cautions and remedial education courses, as those decisions tend to be made on a paper review, rather than a full hearing as you would get in a disciplinary proceeding,” she says.

Erica Richler, a partner at Steinecke Maciura LeBlanc who prosecutes professional discipline cases and provides advice to regulators as part of her practice, says the level of transparency expected of Ontario’s health professions has grown over the last decade and accelerated since Minister Eric Hoskins took over the health and long-term care portfolio in the summer of 2014.

“Discipline hearings have always been open to the public, but it’s in the area of complaints and investigations that may lead to discipline that there has been a huge change. It’s only since 2009 that colleges have been required to have a website,” Richler says. “Bill 87 is a continuation of that trend to more transparency.”

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