Law Times

Law Times • may 8, 2017 Page 11 www.lawtimesnews.com Did province overreach in crackdown on sexual abuse? BY MICHAEL MCKIERNAN For Law Times H ealth lawyers say the provincial government may have overreached in its legislative crack- down on sexual abuse by medi- cal professionals. Bill 87, the Protecting Patients Act, is currently undergoing re- view in the committee stage at Ontario's legislature after pass- ing second reading. The existing Regulated Health Professions Act already contains provisions mandat- ing the revocation of licences for practitioners found to have sexually abused their patients through a variety of listed acts, including sexual intercourse. However, a series of recent high-profile cases highlighted gaps in the list, when doctors were allowed to keep practis- ing even after discipline panels found they had groped their pa- tients. The new law would expand the list to include automatic bans for professionals found guilty of sexual touching of a pa- tient's genitals, anus, breasts or buttocks; a move the province's ministry of health and long- term care said would "further reinforce a zero-tolerance policy on patient sexual abuse by any regulated health professional." But Elyse Sunshine, a lawyer with health law boutique Rosen Sunshine LLP in Toronto, says self-regulating bodies need to re- tain some discretion to account for the wide spectrum of sce- narios that could result in sexual contact between health workers and people they once treated. For example, she says the broad definition of a "patient" in the new law would capture even brief, one-time interactions between injured people and the hospital workers they cycle through during an emergency room visit. "If a person goes into hospital with a broken arm, a radiolo- gist may take an X-ray. Say they started dating after an appro- priate cooling-off period; that kind of sexual contact would be treated in the same way as a case involving someone in a long- term doctor-patient relationship with their family doctor," Sun- shine says. "It's concerning that there wouldn't be any discretion to look at the factors that could be relevant in individual cases. There are hard cases, but I think, historically, regulatory bodies have generally done a very good job making difficult decisions that affect their members and the public." If passed, the new law would also remove colleges' ability to impose gender-based restric- tions on licensees as conditions of their continued practice, as well as boost fines for individu- als and organizations that fail to report allegations of patient sexual abuse. Some of the amendments stem from the recommenda- tions of a ministerial task force on the subject, commissioned in late 2014 following a series of news reports about apparently lenient penalties for profession- als found guilty of sexual abuse in regulatory proceedings. Earlier this year, the issue returned to the spotlight when the Divisional Court ordered a fresh penalty hearing for Javad Peirovy, a Toronto doctor found guilty of groping four walk-in clinic patients by the discipline committee of the College of Phy- sicians and Surgeons of Ontario. The six-month suspension handed down by the committee to Peirovy, who maintains his innocence, was "clearly unfit," the Divisional Court found in its January decision in College of Physicians and Surgeons of Ontario v Peirovy. Although Peirovy's counsel was able to provide a number of previous decisions that suggest- ed the sentence was within the range of reasonable outcomes, Ontario Superior Court Justice James Ramsay, writing for the unanimous three-judge panel, said the plethora of similar cases instead cast doubt on the CPSO discipline committee's "approach to eradicating sexual abuse in the profession," calling them "depressing to review." "Consistency in the imposi- tion of sentence is a proper con- sideration, but a litany of clearly unfit penalties does not justify the penalty imposed in the pres- ent case. The penalty imposed in the present case was clearly un- fit," Ramsay concluded. Lindsay Kantor, a health law- yer with Torkin Manes LLP who frequently represents health pro- fessionals in regulatory proceed- ings, says she's concerned with the "one-size-fits-all" approach taken by the province in the bill, which will apply equally to all 26 of Ontario's self-regulated health professions. "What may be necessary in one profession may not be necessary in another," she says. "Whether or not this was a prob- lem that needed to be dealt with, the way the government has gone about attempting to fix it may create additional ones." Even within occupations, Kantor says, some specialties are more likely than others to require physical contact with patients. She worries that man- datory penalties may chill them from providing services that they would otherwise recom- mend for fear it could be consid- ered sexual touching. "Some are probably going to be more wary of conducting cer- tain treatments or procedures or of treating certain members of the population," Kantor says. "That's good for neither the pro- fessions nor the public." Doctors have also voiced their concerns about the proposed changes through the Ontario Medical Association, which has labelled the bill "deeply f lawed." Spokeswoman Rachel Forman said in a statement that the orga- nization supports the goal of the legislation to stamp out sexual abuse, but she said it could be improved with more input from physicians. "Proposed changes must si- multaneously protect patients and afford physicians access to a just and fair process through the College of Physicians and Sur- geons of Ontario; Bill 87 com- promises this," Forman added. She also said she was alarmed by provisions that would give the province's health minister access to the personal health informa- tion of individual doctors under investigation by their regulator. "The government has pro- vided no clear purpose for this power or limits on when or how much information they can access. Physicians and other health-care providers are citi- zens and patients and are enti- tled to a reasonable expectation of privacy," Forman added. The bill would also give the minister the power to dictate the composition of discipline pan- els, including setting the balance between practising professionals and lay members. Kantor says lay members provide a useful perspective on panels, but that over-representation could cause problems. "You could arguably see pan- els which would consist entirely of members of the public. That would be concerning, since this is supposed to be a self-regulatory regime," she says. Bill 87 also expands the scope of information that health pro- fession regulators must report on members listed in their on- line registries. Remedial con- tinuing education referrals and the status of discipline referrals must now appear online, in ad- dition to synopses of existing discipline and incapacity deci- sions, regardless of whether the allegations were proven. Colleges including the CPSO had already begun posting some of the information bill 87 would make compulsory, generating some controversy among licens- ees, according to Sunshine. "There have been concerns on the part of professionals about the procedural fairness of making public things like cau- tions and remedial education courses, as those decisions tend to be made on a paper review, rather than a full hearing as you would get in a disciplinary pro- ceeding," she says. Erica Richler, a partner at Steinecke Maciura LeBlanc who prosecutes professional disci- pline cases and provides advice to regulators as part of her prac- tice, says the level of transparen- cy expected of Ontario's health professions has grown over the last decade and accelerated since Minister Eric Hoskins took over the health and long-term care portfolio in the summer of 2014. "Discipline hearings have always been open to the public, but it's in the area of complaints and investigations that may lead to discipline that there has been a huge change. It's only since 2009 that colleges have been required to have a website," Richler says. "Bill 87 is a con- tinuation of that trend to more transparency." LT FOCUS Elyse Sunshine says self-regulating bodies need to retain some discretion to address issues that arise after sexual contact between health workers and people they once treated. Celebrating Women In Law Bronze Sponsor Hosted in partnership with lexpert.ca/zenith THE 2017 LEXPERT ZENITH AWARDS Celebrating the advancement of women in the legal profession and society Date: June 22, 2017 CLE session 8 a.m. - 4 p.m. Women's Transformative Leadership Location: Arcadian Loft Awards presentation Keynote Speaker: Justice Rosalie Silberman Abella, Supreme Court of Canada 6 p.m. Cocktail Reception 7 p.m. Gala Dinner and Awards Presentation Location: Arcadian Court, Toronto Business attire To book your attendance or to inquire about sponsorship and table sales, contact us at 416-649-8841 or MediaSolutions.Sales@thomsonreuters.com Untitled-2 1 2017-04-28 2:57 PM What may be necessary in one profession may not be necessary in another. Lindsay Kantor

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