Medical sex abuse report kept secret
Task force’s call for independent body to investigate allegations against health care professionals could defame organizations, government fears
A long-delayed task force report on sexual abuse by health care professionals is being kept secret over concerns that it defames top medical organizations — including the College of Physicians and Surgeons.
The report — which recommends the creation of an independent body to investigate and prosecute doctors and other health care professionals — was reviewed by Health Ministry lawyers and an outside counsel retained by the province.
The outside counsel found that entire sections of the report could be defamatory.
“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,” writes lawyer Douglas Harrison of Stikeman Elliott.
The current draft of the report has many sections removed.
Legal experts say it is highly unusual for the report from a government task force to be kept under wraps for these reasons.
“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,” 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."
JAMIE CAMERON
LAW PROFESSOR
Health Minister Eric Hoskins set up the task force in December 2014 to “help prevent and deal with cases of sexual abuse of patients by regulated health professionals.” It was in response to a series of stories by the Star’s Laura Armstrong. The task force filed its report to the ministry in December 2015.
Currently, regulatory bodies such as the College of Physicians and Surgeons investigate and prosecute a variety of matters, including those involving sexual abuse allegations.
The draft of the task force report recommends stripping medical colleges of this power in cases of sexual abuse.
A college spokeswoman would not comment on the report or the legal review, but noted that the college has made strides in anticipation of some recommendations the task force was considering.
Kathryn Clarke said “we are now providing information about physicians to the police in cases of suspected criminal behaviour.”
Six months after the report was filed to the minister, the 300-page document has not been released.
That’s because the ministry’s legal counsel and an outside lawyer have been conducting an intensive review. Huge sections have been recommended removed on legal advice, though the core recommendations have not been touched.
Typically, the sections cut are those directly critical of the colleges that currently regulate doctors, nurses, psychologists and other health professionals, or the Canadian Medical Protective Association, which insures and defends doctors facing allegations of medical negligence and criminal conduct such as fraud or sexual assault.
Lawyers familiar with libel and defamation law say government task forces are typically given wide latitude to make commentary, and that commentary is usually protected by the defences of fair comment and qualified privilege — a defence for people with an obligation to inform authorities about matters in the public interest. Osgoode Hall’s Cameron, who has seen the task force’s terms of reference but not the report, said that when a government convenes a group with an eye to improving a system, “it should hardly be a surprise that the report would be critical and even harshly critical.”
The Star asked lawyer Harrison and the ministry to comment. Harrison did not respond to emails and calls, and the ministry said it cannot talk about the report until it is released.
The current draft has many sections removed, including this general statement regarding the zero tolerance for sexual misconduct provisions of the law that governs health colleges: “Lack of enforcement by colleges and the Ministry of Health and Long-Term Care under the mandatory reporting requirements ... undermines patient safety and does not uphold the zero tolerance standard.”
Sources said the report’s authors are angry that opinions given after holding public hearings are being stifled.
Task force chair Marilue McPhedran said she could not comment on the “three legal reviews, two internal and most recently, one external.” She said she respects the minister’s decision “whether or not to release the report we submitted in March of this year.”
Another section removed on legal advice deals with the negative effects on patient complainants of discipline proceedings.
The majority of the several pageslong section has been cut, including commentary on how “patients have described themselves as feeling disposable and frustrated.”
The words of a patient in an interview with the task force were also removed after the third legal review. The woman had complained she was abused by a doctor and testified at a subsequent hearing.
“The College of Physicians and Surgeons allowed my psychiatric records to be used against me and against my vehement protests yet nothing from the doctor’s psychiatric history was brought forward. And the psychiatric records were proven factually inaccurate and distorted but nevertheless it was all dragged out and I had no legal standing or protection,” the patient wrote in a quote now removed from the report. Neither the patient nor the doctor are identified.
The college spokeswoman told the Star that the CPSO has approved a pilot project to provide independent legal advice to all witnesses testifying in a disciplinary case against a doctor accused of sexual misconduct.
In his legal review, lawyer Harrison also took issue with criticism levelled by the task force on the agency that insures and defends doctors.
“The references to the Canadian Medical Protective Association suggest that the organization is secretive and nefarious, should be viewed with suspicion, and is somehow engaged in wrongdoing by simply doing what it is mandated to do,” Harrison wrote.
He adds that the report makes it seem like the insurance group and the doctors’ college have been actively suppressing information about the insurance group for decades, something he says is incorrect.
Harrison also criticized the report for suggesting, as he put it, there is “something sinister or improper about the subsidy” doctors receive from the province for their insurance costs. A CMPA spokesperson said the organization has not seen the final report and could not comment, but noted the CMPA “does not tolerate the sexual abuse of patients by physicians or any other health care professionals.”
The task force was announced in December 2014, prompted by a se- ries of stories by the Star that revealed some doctors found by their college to have sexually abused patients were still working.
Health minister Hoskins promised a task force would “review and modernize” the Regulated Health Professionals Act, which governs how doctors, nurses, psychologists and other health professionals are investigated and disciplined. He appointed former chief justice of Ontario Roy McMurtry and human rights lawyer McPhedran as co-chairs.
The third member was Sheila Macdonald, a nurse who is the provincial co-ordinator of the Ontario Network of Sexual Assault/Domestic Violence Care and Treatment Centres. McMurtry dropped out citing health reasons, and a replacement was not appointed. McPhedran has previously been involved in two task forces probing similar issues.
Hoskins asked the small panel to provide recommendations relating to all aspects of the discipline process, including what type of orders can be imposed on medical professionals found guilty by their college of sexual abuse. The Star had reported that while doctors found to have had sexual intercourse with a patient, and other acts including oral to genital contact, will automatically lose their licence, the college has discretion on how others found guilty are disciplined. For example, in one case, a doctor was given an eightmonth suspension and allowed to treat only male patients after being found guilty of sexually abusing 13 women by putting his mouth on or resting his chin on their breasts.
As soon as the report was sent in by the task force in late 2015, the ministry asked first one set of its own lawyers, and then another, to do a review. According to documents, the second review made a series of suggestions (such as making sure research material was properly cited) but left the document largely intact.
A revised version of the report was then sent in March 2016 to lawyer Harrison, who then suggested that whole sections of the report could be defamatory.
According to a letter Harrison wrote to the ministry, he understood his job was to “advise whether there is a risk that any portion of the report could be found by a court to be defamatory.”