When le­gal trep­i­da­tion trumps pub­lic safety

The Hamilton Spectator - - OPINION - Howard El­liott

Some­where in the bow­els of Queen’s Park, prob­a­bly in a dusty fil­ing cabi­net, rests a 300-page re­port. It’s all about the sex­ual abuse of pa­tients by some On­tario doc­tors. Among its trou­bling rev­e­la­tions are sto­ries about doc­tors who abused pa­tients but were al­lowed to keep prac­tis­ing with con­di­tions at­tached.

It also con­tains rec­om­men­da­tions on ways to bet­ter pro­tect the pub­lic, in­clud­ing the cre­ation of an in­de­pen­dent body to in­ves­ti­gate and pros­e­cute doc­tors and other health-care pro­fes­sion­als.

Now this re­port wasn’t cre­ated in a vac­uum. It sprang from pub­lic hear­ings where abuse vic­tims, ex­perts and doc­tors tes­ti­fied. The hear­ings, and the re­port, were paid for with pub­lic dol­lars. Your money.

But you can­not see this re­port. Nor can we. It was sub­mit­ted to the province in De­cem­ber, but is be­ing with­held, largely be­cause one lawyer says it could be con­sid­ered defam­a­tory to­ward med­i­cal col­leges and over­sight bod­ies. That’s right. A pub­licly-funded re­port con­cern­ing a mat­ter of pub­lic safety, but On­tar­i­ans are not al­lowed to see if be­cause of one le­gal opin­ion. (Other lawyers have said they don’t think a judge would sup­port a li­bel or defama­tion case based on what the re­port says.)

This is what the lawyer, re­tained by the province to re­view the re­port, said, in part. “The re­port im­pugns all of the health pro­fes­sion col­leges in On­tario, tak­ing a broad-brush ap­proach to ac­cuse all of them of malfea­sance, ne­glect­ing their du­ties, im­prop­erly ex­er­cis­ing their pow­ers, turn­ing a blind eye to sex­ual abuse and fail­ing to ap­pro­pri­ately dis­ci­pline pro­fes­sion­als.”

This ad­vice wor­ried the province enough that it has al­ready re­moved en­tire sec­tions of the re­port, pre­sum­ably the ones most crit­i­cal.

The re­al­ity is that le­gal ac­tion based on a duly con­sti­tuted pub­lic in­ter­est re­port is un­likely to suc­ceed. Most judges would rec­og­nize the over­rid­ing pub­lic in­ter­est. Os­goode Hall law pro­fes­sor Jamie Cameron said in an in­ter­view: “Fear of a law­suit for defama­tion is not a very good rea­son for with­hold­ing a task force re­port espe­cially where the pub­lic in­ter­est in the is­sue is so strong.”

Sex­ual abuse of pa­tients by doc­tors is not com­mon, but it is not un­heard of. It could be hap­pen­ing to pa­tients right now. What if one or more of the rec­om­men­da­tions in this re­port might have helped pre­vent that abuse, or more fairly dealt with the of­fender?

Does the pro­vin­cial gov­ern­ment re­ally want On­tar­i­ans to think that vul­ner­a­ble pa­tients are re­ceiv­ing less than op­ti­mal pro­tec­tion from preda­tory doc­tors and med­i­cal pro­fes­sion­als just so the gov­ern­ment doesn’t get sued by a med­i­cal over­sight body?

Re­lease the re­port now. Tell ci­ti­zens what mea­sures are be­ing put in place. Fur­ther de­lay is ir­re­spon­si­ble.

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