Senator raises concerns over Bill 87
Doctors’, nurses’ organizations are split on patient sex-abuse law
Successive provincial governments have failed to make the major change that is needed to combat sexual abuse of patients at the hands of health professionals, says Marilou McPhedran.
She would know — she has chaired three task forces on the issue over the last 25 years.
McPhedran, now a senator, was testifying before Ontario’s standing committee on the legislative assembly Wednesday on Bill 87, the Protecting Patients Act.
“The truth is, that the most bold, most necessary recommendations for systemic change have been ig- nored,” McPhedran told the committee of the government’s response to her third task force’s 300-page report. (When she asked the committee members, who come from all three major parties, for a show of hands to indicate whether they had read it, it was clear that most had not.)
Bill 87 is the government’s attempt to strengthen the law around sexual abuse of patients. It comes in the wake of McPhedran’s latest task force report, made public last September after “extensive legal wrangling,” she told the committee.
The task force, established by Health Minister Eric Hoskins in 2014, comprised McPhedran and Sheila Macdonald, provincial co-ordinator of sexual assault and domestic violence treatment centres in Ontario.
It was sparked by a Star investigation on physicians still practising after they were found to have sexually abused their patients.
Testimony before the committee was expected to wrap up this week, and the bill will now undergo a clause-by-clause analysis.
It is likely to pass as the government holds a majority in the legislature. It comes as self-regulating colleges continue to face criticism for bungling cases involving health professionals accused of sexual abuse.
The bill has also divided members of the health professions; the association representing registered nurses loves it, while the association representing doctors hates most of it.
McPhedran, for her part, can’t help but be dismayed at the lack of acknowledgement of the centrepiece of her task force’s recommendations: the creation of an independent body to investigate, prosecute and adjudicate sexual abuse cases involving health professionals.
Hoskins, who has stated that eradicating sexual abuse in the health professions is a priority for him, has said the task force’s main recommendation requires further study. A spokesperson for the minister said Bill 87 is just the first step in the ministry’s response to the task force’s report.
McPhedran, a human rights lawyer, didn’t leave the committee room Wednesday feeling overly confident that the committee would recommend putting the independent oversight body in the bill.
“When the questions are very specific, I can tell if they are going to go for major change and make major amendments. I couldn’t tell that today,” she told the Star after her testimony.
“That doesn’t mean some of them are not thinking of it.”
McPhedran is adamant: there is now more than 25 years of work to show that the current system of selfregulation is not working when it comes to handling sexual abuse cases. As it stands now, the cases go before discipline panels, where the majority of members are from the same profession as the accused health professional.
“The cases that we reviewed in 2015, those cases are identical to the cases that we were reviewing in1991,” she said, comparing discipline cases examined by her third task force to the first one, which was conducted for the College of Physicians and Surgeons of Ontario.
“We have more than adequate evidence to reach the conclusion that no matter what the government tries to do in fine-tuning definitions, finetuning support to patients — all of which are good things — as long as governments, as they have all done for more than 20 years, continue to put public investment into only the professional side, of course that imbalance is going to create inaccessibly and injustice. Of course.”
Bill 87 comes as the College of Physicians is battling its own discipline committee in court for handing a Toronto doctor a six-month suspension last year for groping four female patients, rather than revoke his licence.
The college, which had requested that the independent discipline committee strip Dr. Javad Peirovy of his licence, was successful on its appeal to Divisional Court earlier this year, but Peirovy has since been granted leave to appeal that decision to the Court of Appeal. In the Divisional Court ruling, the three-judge panel had harsh words for the committee’s ability to deal with sexual abuse cases.
“The facts of these cases are base. It is depressing to review them,” Justice James Ramsay, writing for the panel, said of prior sexual abuse cases.
“They do little to encourage confidence in the committee’s approach to eradicating sexual abuse in the profession. 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.”
Bill 87 would add to the list of acts of sexual abuse requiring mandatory revocation of a health professional’s licence. Currently, the list contains sexual intercourse, oral sex and masturbation, and groping will now be included.
McPhedran said the existence of a list speaks to the inability of the disciplines committees at the various colleges to properly exercise their discretion in imposing penalties.
“Nothing has ever stopped any college discipline body to find that the offence was so egregious and damaging to the patient that they could revoke,” she told the Star. “They’ve always had that authority. And they continue, consistently in case after case after case, with the odd exception . . . the pattern is they find ways to avoid (revocation).”
McPhedran also spoke of the difficulties she experienced in her work on the third task force, and of the disputes she had with Ministry of Health officials over the contents of the final report.
As the Star revealed last year, the government was keeping the task force report secret over concerns it defamed top organizations, including the College of Physicians. The “extensive legal wrangling” McPhedran referred to on Wednesday were the outside lawyers the government hired to go through the document.
The final report was delivered in December 2015, she told the Star, after she convinced the government to extend the deadline from July following the resignation of her cochair, former Ontario chief justice Roy McMurtry. She said she encountered pushback, and offered to do the work from July to December for free.
After back-and-forth with outside lawyers for months, the report came back and was “90-per-cent redacted,” she said.
“I said this is completely unacceptable, you figure this out, or I’m going to do something,” she said, mentioning that she ended up releasing her second task force report on her own in 2000. “So they knew it wasn’t an empty threat.”
To his credit, McPhedran said, Hoskins himself called her up in early September 2016 and said after reviewing the report, he was ready to release it almost completely intact, which is what ended up happening. Within three months of the task force report’s release, Hoskins introduced Bill 87 in the legislature.
While no health professional association has publicly taken issue with the provisions around sexual abuse in the bill, there are other parts that have drawn a huge amount of criticism.
The Ontario Medical Association, which has been engaged in a tense contract dispute for years with Hoskins, has been vocal about its objections to a provision that would grant the minister power to compel colleges to turn over personal information about their members, including health information.
“Certainly we think that physicians and other health-care providers should be entitled to the same expectation of privacy,” said newly elected OMA president Dr. Shawn Whatley, who denounced the government’s lack of consultation with his association on the bill.
“Doctors are patients too, they need to have that same privacy dealt with, and the issue the bill raises is that not only is it an infringement of privacy rights, there’s a concern that doctors won’t seek necessary treatment in fear that their personal health information could be shared inappropriately.”
The government has said it consulted with the Information and Pri- vacy Commissioner on Bill 87, although critics have said Hoskins has never explained why this particular provision is in the bill.
A spokesperson for Hoskins told the Star this week that the government has heard concerns about the provision and that they “are considering this feedback as we enter the clause-by-clause phase of the committee process.”
The OMA also takes issue with the provision that would allow the minister to create regulations to set the composition of committees and panels, meaning discipline panels could one day be comprised of mainly public members, rather than members of the profession.
Critics have said this displays a lack of faith on the part of the government in the self-regulation of health professions, and is a way for it to develop a larger role for itself in the system without completely taking it over.
“We believe in self-regulation and that requires clinical input,” Whatley said. “There are nuances that need to be brought to bear from a clinical perspective, and self-regulation demands professional representation on committees.”
Over at the Registered Nurses’ Association of Ontario, it’s a much different stance than the OMA. Polar opposite, in fact. The RNAO not only supports every provision in Bill 87, but they also support McPhedran’s call for an independent body to prosecute sexual abuse cases.
“Something is deeply wrong when we put out report after report after report and we continue to leave (sexual abuse cases) basically in the hands of a non-neutral body,” said the association’s CEO, Doris Grinspun.
“That to us is our issue at RNAO, that the public deserves a neutral body to look at something as serious as sexual abuse, which is very impactful on people’s lives.
“I think if there was a separate body, likely the number of complaints would increase at the beginning, because people would feel freer and safer to bring those complaints forward, knowing that there will be a fair, neutral process.”