Sexual abuse of patients by health care providers

Physicians and other regulated health professionals have a duty to act in the best interests of their patients, an obligation that has always been viewed as being generally incompatible with any sort of sexual relationship between health care providers and patients. Under the Regulated Health Professions Act, Ontario takes a zero tolerance approach to sexual activity between patients and health care providers, and it’s no defence to argue that a sexual relationship between a patient and a provider is consensual. All sexual acts, including “behaviour and remarks of a sexual nature” come within the definition of “sexual abuse”, though the concept “of a sexual nature” excludes touching, behaviour, or remarks of a clinical nature appropriate to the service provided.

The Health Professions Procedural Code provides for mandatory revocation of a regulated health professional’s certificate of registration for certain instances of sexual abuse – if the abuse comes within a defined list of sexual acts, revocation must result. For sexual abuse that does not involve these acts, the penalty is at the discretion of the Discipline Committee. If a provider’s certificate of registration has been revoked, the provider can’t apply for re-instatement for 5 years.

The mandatory revocation provisions have been challenged in the Court of Appeal several times since they took effect in December of 1993. This month the Divisional Court affirmed the legislative scheme, and specifically the mandatory revocation sections, as being constitutional[1].  The Court affirmed that there is no constitutional right to practise a profession; that a revocation of a professional license is not a deprivation of an individual’s liberty (and therefore not contrary to section 7 of the Charter) and that the ordeal of undergoing disciplinary proceedings (and the related media storm) is not a violation of a provider’s security interests (also protected under section 7 of the Charter).

Over the years, some providers have argued in court that the zero tolerance provisions are too broad because they include spouses, and sexual relationships that pre-date the professional relationship, and certain exemptions with respect to spousal relationships have been added to the Act. A spousal exemption enacted in 2013, to permit treatment of spouses where the profession makes a regulation to that effect, gave rise to a novel  defence in a recent abuse case.

In Sliwin v CPSO, the provider argued that his multi-year extra-marital relationship, conducted clandestinely in his office, in exchange for free (and major) cosmetic surgery, was tantamount to a spousal relationship, even though they did not cohabit. The court rejected this argument, holding that the exemption is specific, unambiguous and narrowly drafted to include only spouses, as defined in the Family Law Act (which includes married and common law spouses), and only sexual relationships that occur when the provider is not engaged in the practice of the profession.

Zero tolerance for sexual abuse is now an entrenched principle, and in some ways is becoming even more strict. The Ontario government has recently proposed changes to expand the list of defined sexual acts which, once proven, will require mandatory revocation; the proposed changes will also require suspension of a professional’s privilege to practise where outright revocation is not mandatory. Debates about these changes, embodied in Bill 87, the Protecting Patients Act, began on March 27, 2017.  As of April 13, 2017, the Bill is at second reading and has been referred to the Standing Committee of the Legislative Assembly of Ontario.

While the Bill expands the grounds for mandatory revocation, and increases fines for failures to report instances of sexual abuse of patients, the proposed amendments would introduce temporal parameters around the meaning of “patient”. In Bill 87, a patient remains a patient for one year after the end of the patient-provider relationship. Additional criteria for defining “patient” may be set out in a government regulation. This introduces some flexibility into the zero tolerance approach and reflects some of the arguments previously advanced by unsuccessful litigant health care professionals.

To see Bill 87, click here http://www.ontla.on.ca/web/bills/bills_detail.do?locale=en&BillID=4477&detailPage=bills_detail_the_bill

To see the decision of the Divisional Court in Sliwin v. CPSO (2017), click here. http://www.canlii.org/en/on/onscdc/doc/2017/2017onsc1947/2017onsc1947.html?searchUrlHash=AAAAAQAGc2xpd2luAAAAAAE&resultIndex=7

To see a list of the 26 professions regulated under the RHPA, click here https://www.ontario.ca/laws/statute/91r18#BK52   and then click on Schedule 1.

Simmie Palter is senior health law counsel at Dykeman & O’Brien LLP. Professional regulation is one of Simmie’s main areas of interests, but she provides advice in many other aspects of health law. The views expressed herein do not constitute legal advice. For more information email spalter@ddohealthlaw.com.

[1] Sliwin v. College of Physicians and Surgeons of Ontario 2017 ONSC 1947 (CanLII, Div Ct).

What Colleges, members, advocacy associations and health care institutions need to know about Bill 87

Bill 87, the Protecting Patients Act, 2016, was introduced by Ontario’s Minister of Health and Long-Term Care on December 8th.  Proposed amendments to the Regulated Health Professions Act will give the Minister more control over the composition of colleges’ statutory committees, increase the colleges’ power to suspend members as an interim measure, implement changes regarding sexual abuse that aim to protect the public, and increase reporting obligations of members. Fines for a facility’s failure to report sexual abuse are also increased.

Regulators should be vigilant to ensure that their needs are communicated to the government and request consultation prior to the government making regulations that will affect selection of panel members and quorum for the Registration, Discipline, Fitness to Practice and Inquiry, Complaints and Reports committees, among other matters. Members of regulated health profession colleges, as well as advocacy associations, should be concerned about increased reporting obligations for members and collection of members’ personal information and personal health information to aid the Minister in deciding whether or not a college is fulfilling its duties under the Act.  Health care institutions should be aware of the increased monetary fines for failures to report sexual abuse.

A detailed exploration of the Bill’s impact on the Regulated Health Professions Act follows.

Bill 87’s impact on the Regulated Health Professions Act:  a detailed review

Bill 87, the Protecting Patients Act, 2016, amends a number of pieces of health care legislation.  This blog focuses on the proposed amendments to the Regulated Health Professions Act.

Under the proposed amendments to section 5, the Minister may require reports from a regulated health profession college Council that may contain personal information or personal health information of its members, to the extent necessary to allow the Minister to determine whether:

  • the college is carrying out its objects and fulfilling its duties; and
  • whether the Minister should exercise his powers under the Act or under a health profession Act, the Drug and Pharmacies Regulation Act or the Drug Interchangeability and Dispensing Fee Act

Although the Bill limits the collection of personal information and personal health information to no more than is necessary for the intended purpose, and indicates that collection of this information should not occur if other information will suffice, we have some concern about this ability of the Minister to require the production of personal information and personal health information of members where the Minister reviews the Council’s activities and requires the provision of reports and information.  The Minister’s review of a Council’s activities ,and decision about whether to take action, should not hinge on personal information or personal health information of members. Why would de-identified information or information in aggregate form only not suffice?

Under the proposed amendments, the Minister may request that a college collect personal information directly from its members not only for the purposes of health human resources planning but also for health human resources  research.

New regulation-making powers that are proposed will increase the oversight powers of the government by allowing it to make regulations:

  • governing the composition of committees of the Executive, Registration, Quality Assurance, Patient Relations, Discipline, Fitness to Practise and Inquiry Complaints and Reports Committees; qualifications for sitting on these committees; and reasons for disqualification from them;
  • setting out rules for the selection of panels of the Registration, Discipline, Fitness to Practice and Inquiry, Complaints and Reports Committees and quorum for these panels;
  • clarifying how a college is required to perform its inquiry, complaints, reports, discipline and incapacity functions in respect of allegations of misconduct of a sexual nature and providing for further functions and duties not inconsistent with those functions; and
  • expanding the purposes for which funding for therapy or counselling may be available from a college.

These new regulation-making powers will give the government more control over the kinds of qualifications necessary for members who sit on statutory committees. Any rules set out in these government-made regulations will prevail over rules about committee composition that are currently set out in college by-laws. The degree of input by the colleges into these regulations will depend on the amount of consultation the government undertakes, if any, and the degree to which colleges notify the government of their needs. There is no requirement for consultation with members or the colleges prior to the government making such regulations.  Colleges will want to be proactive in communicating their needs to government.

Additional proposed amendments will enhance the colleges’ power to protect the public from members about whom a complaint or report has been made by permitting an interim suspension order if the Committee is of the opinion that the member’s conduct or the member’s physical or mental state exposes, or is likely to expose, the member’s patients to harm or injury.  Any such interim suspension order, however, is not permitted to contain gender-based restrictions on the member’s certificate of registration. Registrars are also given power to withdraw a complaint or report before the Inquiry, Complaints and Reports Committees takes any action, if the complainant requests the withdrawal of the complaint or report.

The proposed changes also place more obligations on members to report:

  • their membership in another regulatory body that governs a profession inside or outside of Ontario;
  • findings of professional misconduct or incompetence from other regulatory bodies, inside or outside Ontario; and
  • if he or she has been charged with an offence and bail conditions, if any; the results of any appeal must also be reported.

The proposed changes in respect of sexual abuse aim to enhance protection of the public. These amendments:

  • prescribe offences that can trigger the application of the mandatory revocation provisions, via a government-made regulation (not a college regulation);
  • expand the list of grounds for mandatory revocation of a member’s certificate of registration;
  • require suspension where the professional misconduct involving sexual abuse does not fit within the expanded list of acts triggering mandatory revocation;
  • increase the amount of information available from the public register;
  • define “patient” to include an individual who was a member’s patient within the last year or within such longer period of time as may be set out in a government-made regulation;
  • define “patient” by criteria (other than time) set out in a government-made regulation;
  • increase monetary penalties for a facility’s failure to report suspected sexual abuse of a patient by a member, from $25,000 for individuals to not more than $50,000 (upon conviction) and from $50,000 for corporations to $200,000; and
  • allow patients who make complaints or reports involving sexual abuse allegations to access funding for patient therapy and counselling immediately, instead of waiting until after a finding of professional misconduct is made.

Advocacy associations, health care facilities and regulators are encouraged to voice any concerns they may have about this bill to the government without delay. For more information or assistance please contact spalter@ddohealthlaw.com.

Emergency Preparedness Program for Health Care Organizations

At DDO Health Law, we understand your organization’s need to put in place a robust emergency management plan (including for some organizations, by September 30, 2015). We have developed a 12-step program to help you meet that deadline and then continue to prepare your organization in case of emergency such as fire, flood, or pandemic.  Our program reflects current best practices, including materials provided by at least one local health integration network to its health services providers. We have read all of these materials and pulled from them and other resources to determine current best practices — so that you do not need to.

DDO Health Law’s Emergency Preparedness Program offers your organization the comfort and assurance of:

  • Understanding the pillars of emergency management, including Prevention and Mitigation, Preparedness, Response, Recovery
  • Creating organization-specific emergency management plans to establish simultaneous response to fires and other emergencies
  • Effectively participating in system level preparedness and coordinating emergency response with other health service providers
  • Properly training team members in case of emergency
  • Identifying key gaps, including hazard identification and risk analysis
  • How to best communicate with your clients, their families, the public and the media

The DDO Health Law Emergency Preparedness Program provides you with:

  •  Dial-in series. You will be invited to take part in 5 phone sessions, scheduled in September. We will provide you ahead of the calls a template plan, the 12 steps you need to take to be ready, and other templates and materials. Noon sessions are:
    • Thursday, September 3
    • Friday, September 11
    • Thursday, September 17
    • Thursday, September 24
    • Final session with open Q&A on Monday, September 28
  • Training materials. You will be provided template training materials for team members, including a training slide deck you can circulate before your Board signs off, even before you schedule an in-person session to walk your team through the training.
  • Admin on call workbook. DDO Health Law previously wrote an administrator on call workbook to help health care staff deal with various kinds of crises. It is the bedrock of emergency management. We will provide you a copy of this workbook, and a draft chapter specifically on emergency preparedness. We will also provide you a copy of the updated workbook once available, for your future reference.
  • Mutual aid/assistance agreement. This template agreement is ready to be used in the event that an emergency strikes your organization, and you need to quickly put into place legal arrangements to backfill services.
  • Briefing note for your senior leadership and Board. Written by DDO Health Law, it will state that you have signed up for and participated in the DDO Health Law program, have been provided with the materials described here, and that you have undertaken that you have “filled in the blanks” and taken the steps we’ll discuss in the dial-ins. As long you have done this, we are prepared to say that your organization is compliant and that your Board should feel assured that it can sign the M-SAA by September 30, 2015 as requested by at least one LHIN. For others who do not need a September 30 signoff, the materials and briefing note still serves as a baseline for your Board and shows a measure of your due diligence.
  • Board resolution. Template Board resolutions will be provided, both for those organizations that must meet the September 30 deadline, and a more generic one for those that do not.
  • Feel free to include whomever you wish on the dial-in. The flat fee covers any team members you want to have at your table to listen in and ask questions as you work through and finalize your plan and program.

Registration is $1,000.00 plus HST ($1,130). We accept Visa or cheques.

Fax to Franca Latino at (416) 967-7120; or call her at (416) 967.7100 ext. 242 to say you will register and how you will pay.

DDO HEALTH LAW

Mary Jane Dykeman and Kate Dewhirst are partners at DDO Health Law, a boutique health law firm in Toronto. They frequently advise on risk management issues relating to health care organizations premises, reputational risk, staff issues and other crises. Mary Jane was recently part of a fire safety emergency preparedness panel at the 2015 OANHSS annual convention. Mary Jane and Kate work extensively with community providers, large and small hospitals, community support services providers, disease associations, long-term care homes, family health teams, community health centres, retirement homes and other housing and health service providers.

Feel free to email or call Mary Jane Dykeman at (416) 967-7100 ext. 225 with any questions

Recommendations from the QCIPA Review Committee

In 2014 the Ministry of Health and Long-term Care called for the formation of a committee to look at current practices in the interpretation and implementation of the Quality of Care Information Protection Act and to make recommendations for improvement. The resulting QCIPA Review Committee, which submitted its report to the Ministry in December 2014, issued 12 recommendations. These recommendations include among other things propositions related to: (i) changes in the legislation; (ii) an increased emphasis on patient involvement in investigations; and (iii) mechanisms to better utilize the lessons learned through investigations. Michael Gleeson was recently interviewed on the topic. See:

http://www.advocatedaily.com/recommendations-for-qcipa-a-good-step-forward.html

ECFAA provides hospital boards with a broad mandate for oversight of patient care

The Medical Advisory Committee (“MAC”) of a hospital has traditionally been the primary mechanism for a board of directors to ensure that a hospital is providing the appropriate quality of care to its patients. However, the Quality Committee of a hospital, as required by the Excellent Care for All Act, may be equally as important for a board. While the MAC is critically important for oversight and evaluation of the patient care provided by privileged health care providers, it has a relatively limited mandate as compared to the Quality Committee. The Quality Committee is tasked with responsibility for, and granted the tools necessary to oversee, all aspects of patient care within a hospital; not just care provided by privileged doctors, dentists, extended class nurses and midwives. Michael Gleeson was recently interviewed on the topic of board oversight of patient care. See:

http://www.advocatedaily.com/ecfaa-provides-broader-oversight-of-patient-care.html

Supreme Court of Canada strikes down prohibition on assisted suicide

Mary Jane Dykeman interviewed about the new Supreme Court of Canada decision released today in Carter v. Canada (Attorney General)

See article: http://www.advocatedaily.com/supreme-court-reverses-ban-on-doctor-assisted-death-unconstitutional.html

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