A fresh look at doctors and sex abuse

Task force to review 25-year-old law deemed a ‘failure’ for inability to protect patients and deal with complaints

A quarter-century after the College of Physicians and Surgeons first identified sexual abuse of patients as a serious problem, a third task force is about to begin reviewing the law governing health professionals.

Sandra Rodgers says she’s looking forward to the results, because the approach piloted two decades ago, while bold at the time, has been a “failure.”

“Time has proven that the structure for handling complaints inside the colleges hasn’t proven effective,” said Rodgers, a professor emeritus specializing in medical law at the University of Ottawa.

Health Minister Dr. Eric Hoskins announced on Dec.16 that he had appointed a three-member task force to review the legislation that dictates sexual abuse pol- icies for 23 self-regulating colleges: the Regulated Health Professions Act.

Hoskins picked legal heavyweights to co-chair the panel: human rights lawyer Marilou McPhedran and former chief justice of Ontario Roy McMurtry. Sheila Macdonald, an educator and nurse, is the third member on the task force, which will report back to the public and the minister with its recommendations in the spring.

The first task force, undertaken by the College in 1991, brought in sweeping changes in the form of new legislation governing misconduct issues for all regulated health professionals. The second task force was initiated in 2000, after McPhedran requested a meeting with the health minister at the time to discuss concerns about how well the sexual abuse provisions in the RHPA were working.

The latest review follows a Star investigation on doctors who have continued to practise despite having been found guilty in disciplinary hearings of sexually abusing patients.

This includes some doctors found criminally responsible for assaulting patients and their relatives.

Among other things, the Star’s investigation revealed that 20 doctors currently have gender-based restrictions on their licences, in some cases after the college found them guilty of professional misconduct involving sexual abuse of a patient.

What sets this review apart is that the minister initiated it and has asked the panel to look specifically at the law’s sexual abuse provisions — including which specific acts should trigger an automatic loss of licence, what’s appropriate discipline, and whether it should be mandatory to report sexual abuse of patients to police.

Media attention is what first turned the College’s attention to the issue back in 1990, said Patricia Marshall, who, along with McPhedran, was on both of the previous task forces.

Marshall was the head of METRAC, an organization that works with women and children who have been abused.

“I was gathering a growing, growing file of sexual abuse of women by physicians and was increasingly concerned,” she said.

Along with Dr. Gail E. Robinson, a METRAC board member at the time, Marshall was invited to speak to the College’s governing council about their knowledge of sexual abuse of patients.

“We hadn’t even left the building and the council called us back and announced the task force,” said Marshall.

The five-member panel studied the issue for seven months, travelling across Ontario for hearings on the matter and listening to more than 300 cases of patient abuse. Their report resulted in major changes for all self-regulated health professionals, as it coincided with the province’s renewal of the legislation governing these professions.

Previously, sexual abuse had been grouped with other forms of misconduct, with no specific penalties assigned to it, said Rodgers.

“What the reforms did, which were done with huge support from the CPSO, (was) to take this conduct seriously, define it precisely and impose consequences for it,” said Rodgers.

The legislation, which came into effect in1994, defined sexual abuse and took a “zero tolerance” stance on it. Under the law, a medical licence is automatically revoked for five years for certain “frank sexual acts,” including sexual intercourse, oral-togenital contact, genital-to-genital contact, genital-to-anal contact and masturbation. But it didn’t include all the acts in the task force’s recommendations, such as oral-to-oral contact, and touching breasts, genitals or any sexualized body part for any purpose other than appropriate examination.

This issue came to the fore again in 1999, when McPhedran requested a meeting with the original task force members and the health minister of the day, Elizabeth Witmer. The RHPA was being reviewed by an independent advisory council and, after meeting with the group, Witmer appointed the task force to review and report back to the council on issues related to sexual abuse provisions in the RHPA.

But Marshall said this review wasn’t as extensive and carried less weight because sexual abuse wasn’t on the initial agenda to review and the recommendations were part of a much larger review.

The headline action in that report was creating an independent body to receive and investigate complaints from the public — and to decide whether those complaints should be forwarded to a disciplinary hearing, rather than having colleges be the first point of contact.

But that recommendation wasn’t put into action. For Marshall and Rodgers, that points to the persistent issue of lack of oversight inevitable in a system that relies on self-regulation.

Some form of oversight is essential to “prevent slippage,” said Marshall. “Wherever there is discretion, there is a need for safety checks and balances.”

Rodgers says the College of Physicians and Surgeons, in particular, has revealed its inability to deal with these issues in many ways.

She cites the College’s “huge reluctance” to revoke licences even in egregious cases, belief in re-education through courses on professional boundaries and the tendency to take tepid disciplinary actions, such as restrictions that allow a physician found guilty of sexual abuse to treat women if a chaperone is present.

“None of those halfway measures have proven to be effective in preventing further cases of abuse,” Rodgers said.