When legal trepidation trumps public safety

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.