Canada: Minister Of Health And Long-Term Care Promises Legislative Changes Relating To Sexual Abuse

Health care professionals are prohibited from engaging in sexual acts, conduct, or behaviour with their patients. It is professional misconduct to engage in such conduct, which is defined as "sexual abuse" in the governing legislation¹. The legislation attempts to impose a zero tolerance approach to sexual abuse. Sexual abuse involving certain frank sexual acts results in the mandatory revocation of a regulated health professional's certificate of registration.

In December 2014, the Minister of Health and Long-Term Care commissioned a Task Force to review the legislation governing regulated health professionals and the practice of regulatory health colleges in relation to the issue of sexual abuse. Nearly two years later, on September 9, 2016, the government issued a press release, along with the Task Force's recommendations, stating that it intends to introduce legislative amendments this fall that will amount to "concrete action to uphold and reinforce a zero tolerance policy on sexual abuse of patients by any regulated health professional."

According to the press release, the legislative amendments will:

1. expand the list of various acts that will lead to the mandatory revocation of regulated health professionals' certificates of registration;
2. prevent a college from allowing a regulated health professional to continue to practice on patients of one gender after there is a finding or allegation of sexual abuse;
3. increase fines for regulated health professionals and facilities that fail to comply with their mandatory obligations to report to a college a reasonable belief that a member of a college has engaged in an act of sexual abuse;
4. expand the requirements as to what colleges must post on their public register/website;
5. provide clarity as to the time period after the end of a patient-provider relationship in which sexual relations are prohibited; and
6. fund patient therapy and counselling immediately after a complaint of sexual abuse is made.

The press release states that the above-noted actions are "based on" the recommendations made by the authors of the Task Force's report, which report contains 34 recommendations. The Minister has not committed to the majority of the Task's Force's recommendations, including its recommendation that the investigations and adjudication of sexual abuse complaints be removed from the authority of the self-regulatory colleges and operate under a new authority. It is unclear at this time whether the Minister's committed legislative amendments, listed in the six points above and outlined below, will follow the Task Force's related recommendations.

Six Proposed Legislative Amendments

1. Expand the list of various acts that will lead to the mandatory revocation of regulated health professionals' certificates of registration.
   
   Currently, not all sexual acts found to have been engaged in with a patient by a regulated health professional result in the mandatory revocation of the professional's certificate of registration. The Task Force recommends expanding the list of automatically revocable sexual acts by itemizing additional acts. Rather than attempt to create an exhaustive list of sexual acts, the College of Physicians and Surgeons of Ontario ("CPSO") recommended a two-tiered approach to the definition of sexual misconduct in an October 2015 letter to the Minister. The CPSO proposes that "sexual abuse" be defined to involve physical sexual contact with a patient and that such conduct will result in automatic revocation, whereas "gestures, comments, remarks and any other behaviour of sexual nature towards a patient that is not sexual abuse" will be defined as "sexual impropriety" with discretionary penalties. The Ministry has not indicated how it intends to modify the list of acts that will result in mandatory revocation, nor whether it will redefine "sexual abuse".
2. Prevent a college from allowing a regulated health professional to continue to practice on patients of one gender after there is a finding or allegation of sexual abuse.
   
   It has been common practice for some regulatory colleges to impose terms, conditions and limitations on a member's certificate of registration that he or she be restricted from engaging in clinical encounters with patients of one gender, allowing him or her to continue to practice on patients of another gender. Such terms have been imposed as voluntary undertakings when allegations of sexual abuse against members of one gender are being investigated (and there is no authority for a college to impose a restriction), or when either interim orders pending a discipline committee decision, or final orders of the discipline committee, have been made. Consistent with the Task Force's recommendations, the press release proposes eliminating this practice. While gender-based restrictions have been criticized for failing to sufficiently protect patients, they may be suitable in certain circumstances, depending on the facts and allegations, particularly when the least restrictive measure must be undertaken by a body imposing terms.
3. Increase fines for regulated health professionals and facilities that fail to comply with their mandatory obligations to report to a college a reasonable belief that a member of a college has engaged in an act of sexual abuse.
   
   Currently, the Health Professions Procedural Code, which is Schedule 2 to the Regulated Health Professions Act, 1991 (the "Code") provides that an individual who is found guilty of failing to make a mandatory report when he or she has reasonable grounds to believe that a member of a regulated health profession has engaged in sexual abuse may be fined not more than $25,000 for a first offence and not more than $50,000 for a second or subsequent offence. If a "facility" (undefined in the Code) is found guilty for failing to make such a mandatory report, the Code provides that a fine may be ordered of not more than $50,000 for a first offence and not more than $200,000 for a second or subsequent offence. The Task Force states that a facility has never been held accountable for failures to report and recommends that fines for facilities, such as hospitals, universities, and private clinics where health services are provided to patients, be increased to between $100,000 and $250,000. The Task Force further recommends expanding the duty of facilities to report allegations of sexual harassment, sexual misconduct (undefined) and exploitation (undefined). Despite these recommendations, the Minister's press release is silent on expanding the reporting duties of facilities and on the quantum of increased fines.
4. Increasing the requirements as to what colleges must post on their public register/website.
   
   Currently, allegations referred to the discipline committee, discipline committee decisions, and restrictions on a certificate of registration are public information. Complaints, which have not been disposed of by a college's screening committee or which have been found to have no merit, are not public information. It is unclear what requirements for increased transparency are being contemplated by the Ministry.
5. Provide clarity as to the time period after the end of a patient-provider relationship in which sexual relations are prohibited.
   
   While "sexual abuse" is defined in the legislation, the term "patient" is not. Courts have stated that whether or not an individual is a "patient" is a question for the discipline committee considering the matter, applying its expertise in consideration of the particular facts and circumstances at hand. Because a finding of sexual abuse requires a concurrent sexual and professional-patient relationship, discipline committee panels often grapple with the question of whether a professional-patient relationship has ended and when. While it is reasonable to differentiate the varying durations and types of practitioner/patient relationships to consider whether the relationship was concurrent with or ended before a sexual relationship, the lack of clarity can be problematic both for the health professional and the regulatory body. The Minister's press release does not state how it will provide clarity on this issue and whether different considerations will be given to different regulated health professionals or health professionals with different practices.
6. Fund patient therapy and counselling from the moment a complaint of sexual abuse is made.
   
   The Code provides that each college must establish a program to provide funding and therapy for persons who, while patients, were sexually abused by members. Section 85.7(4) of the Code limits a person's eligibility for funding to a discipline committee finding of sexual abuse or in accordance with alternative requirements prescribed by regulations made by the Council of each regulatory college. The press release contemplates expanding the required eligibility for funding to a complainant upon issuing a complaint.

In its press release, the government promises to immediately engage an expert to improve the processes that health regulatory colleges must follow in dealing with sexual abuse complaints, investigations, and disciplinary matters and states that by winter 2017, further measures will be introduced to increase patient participation in these various processes and enhance knowledge and education among the patients, public and health professionals.

Miller Thomson's Health Industry lawyers have extensive expertise in navigating these regulatory issues, including when to report, investigate and act on allegations of sexual abuse, and in developing policies pertaining to, among other things, codes of conduct. We will be following these proposed legislative amendments and will continue to report with updates.

Footnotes

1. Sexual abuse of a patient is defined in the Health Professions Procedural Code, which is Schedule 2 to the Regulated Health Professions Act, 1991,

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