Update on CPSO’s Sexual Abuse Initiative
At its meeting on September 10th & 11th, the Council of the College of Physicians and Surgeons of Ontario (“CPSO”) approved a number of additional measures in furtherance of its ongoing Sexual Abuse Initiative. The key developments are summarized below. For a more detailed outline of all of the recent decisions and recommendations see the CPSO’s news release, backgrounder and Council Update. These new measures build upon the steps that were taken by Council at its meeting in May, which we previously covered here on our blog.
Approval of Sexual Abuse Principles
The CPSO’s Council approved draft Sexual Abuse Principles for external consultation in May, which were then circulated for stakeholder feedback until August 7, 2015. A revised draft of these principles prepared based on the feedback received during the consultation period was approved by Council at the September meeting and is now available to the public through the CPSO’s website page: Preventing and Dealing with Sexual Abuse.
Proposed Changes to the Regulated Health Professions Act, 1991
At its most recent meeting, Council also approved a proposal to recommend two new amendments to the Regulated Health Professions Act, 1991 (“RHPA”). It appears that these proposed changes, in addition to those amendments that were adopted by Council in May, will be set out in a future submission to the Minister of Health and Long-Term Care.
Power to Re-Open Sexual Abuse Investigations
The College recommends that the Health Professions Procedural Code (the “Code”), which is Schedule 2 to the RHPA, be amended to give the Inquiries, Complaints and Reports Committee (“ICRC”) the authority to re-open investigations of sexual abuse, sexual impropriety or other prescribed acts of professional misconduct that were previously found by the ICRC not to warrant any further action. Currently, the outcome of an ICRC investigation is considered to be a final disposition of a matter, subject to any request by the health professional or the complainant for review by the Health Professions Appeal and Review Board.
The purpose of the amendment would be to address circumstances in which additional significant information is obtained after the ICRC has decided to take no further action with respect to a complaint of sexual abuse – for e.g. a complainant who originally denies having been harmed in any way and who later comes forward with an allegation of sexual abuse by a physician. At the time the ICRC disposes of the original complaint by taking no further action, the physician would be given notice that the ICRC may re-open the investigation if new information comes to light that warrants the exercise of the power.
One possible result of this new power would be that an allegation of sexual abuse that was previously disposed of could later be referred to the Discipline Committee. The CPSO has justified this proposal as necessary due to the nature of sexual abuse investigations and the challenge of sexual abuse prosecutions, where victims may not be prepared to share their story until many years after the abuse. However, there are a number of concerns with respect to this power. First, if an investigation into an allegation of sexual abuse is disposed of by the ICRC at first instance as requiring no further action, it would be contrary to the goal of finality in legal proceedings if the matter could be reopened at any time. Second, it would be unfair to the member if he or she had to live in fear that a closed matter could resurface at any time throughout his or her career. Third, the ICRC may be reluctant to dispose of an investigation with an educational outcome, such as a boundaries course, advice or a caution, on the basis that doing so would preclude the possibility of re-opening the investigation in the future.
2. Reinstatement Criteria
The Code currently states that an application for reinstatement following revocation for sexual abuse should not be granted unless the “prescribed conditions” have been met. Since the RHPA was enacted in 1994, there have never been any conditions prescribed. The CPSO has recommended that it remain this way, because clear criteria have been established in the case law that has come out of the applications for reinstatement that the CPSO Discipline Committee has considered. Specifically, between 2004 and 2014, the CPSO Discipline Committee considered thirteen applications for reinstatement, the vast majority of which involved misconduct of a sexual nature. Seven of the applications were granted (only one of which was actively opposed by the CPSO; six were dismissed.
Furthermore, the CPSO noted that holding back on prescribing the criteria for reinstatement gives it the flexibility to adapt criteria to new situations or introduce new criteria when necessary. Another way of addressing the absence of prescribed conditions could have been to codify the principles from the cases heard to date, by including in the legislation a list of a number of the conditions, along with a “basket clause” at the end: “and any other conditions that may be prescribed.”
Framework to Guide the Use of Gender-Based Restrictions
Council also approved a framework for guiding decisions to impose gender-based restrictions on a physician’s certificate of registration. This measure has previously been used by the CPSO as a way to protect patients when a physician is either alleged, or has been found, to have engaged in sexual misconduct. The CPSO explained in the most recent issue of its newsletter, Dialogue, that the presumption has been that where the sexual misconduct related to a patient of one gender, either preventing future contact with patients of that gender or requiring that all future contact be supervised will help protect patients from risk of harm.
In light of recent criticism regarding the use of gender-based restrictions, including that they are not sufficiently punitive nor do they sufficiently mitigate the risk of harm to patients, the CPSO developed a set of factors to guide the determination of whether gender-based restrictions are appropriate prior to or after a discipline referral, as well as in the context of settlement instructions, penalty orders and applications for reinstatement. The factors include careful consideration of the facts of the matter, the history of the physician, the powers available to the CPSO at the particular stage of the proceeding, and the associated risks and benefits of employing gender-based restrictions. The CPSO believes that consideration of these factors could lead to a reduction in the use of these measures in the future.
What’s Next?
The CPSO is currently seeking feedback on its draft Rights and Responsibilities document, a patient resource that sets out specific information regarding patients’ rights, what patients should expect from their physician during medical examinations, and how the CPSO can assist if questions or concerns arise about their physician’s conduct or actions. The consultation period is open until November 20, 2015 and the draft document will be presented to Council for final approval in December 2015.
We anticipate that the CPSO will be sending all of its recommendations for legislative amendments to the sexual abuse provisions of the RHPA to the Ministry of Health and Long-Term Care in the coming months. The Minister of Health also has a Sexual Abuse Task Force, the work of which remains ongoing. It remains to be seen whether the CPSO's proposed amendments will be adopted by the Ministry and how these will impact the recommendations of the Minister's Task Force.
