CPSO Council recommends changes to sex abuse laws

By Lonny Rosen and Elyse Sunshine

The College of Physicians and Surgeons of Ontario (“CPSO”) is taking steps to provide greater protection for patients from physician sexual abuse. As part of its ongoing Sexual Abuse Initiative, the CPSO recently approved a series of new measures, including recommendations for amendments to the sexual abuse provisions of the Regulated Health Professions Act, 1991 (“RHPA”).

These proposed amendments to the RHPA have been a long time in the making. In December 2014, the Minister of Health and Long-Term Care (“Minister”) announced the establishment of a Task Force to review the sexual abuse provisions of the RHPA. Later that same month, CPSO Council launched an initiative to undertake its own review not only of the sexual abuse provisions in the RHPA, but also of the CPSO’s processes and practices with respect to: complaints, investigations and discipline hearing, patient support and access, and education relating to sexual abuse by physicians. It did so in the hopes that the outcome of the review could inform and assist in the Minister’s Sexual Abuse Task Force, as well as improve protections and support for patients.

CPSO’s recommendations for amendments to the RHPA

The RHPA contains strict, “zero-tolerance” provisions regarding sexual abuse of patients by regulated health professionals. The definition of sexual abuse in the RHPA includes physical sexual relations between a member and a patient, touching of a sexual nature, and behaviour or remarks of a sexual nature by a member towards a patient. Sexual abuse of a patient is an act of professional misconduct and is subject to significant consequences, including the mandatory revocation of a physician’s certificate of registration where the sexual abuse consists of certain specified frank sexual acts, including sexual intercourse, oral sex and masturbation. In these circumstances, if the physician wishes to try to be reinstated to the CPSO, the physician must wait five years before applying. Reinstatement in and of itself is a difficult process, requiring a full hearing into the issue of whether reinstatement of the physician’s certificate of registration is in the public interest.

At a recent meeting, CPSO Council endorsed a number of proposed changes to the sexual abuse provisions of the RHPA. Some of the most significant proposed amendments include:

  • New definitions of sexual misconduct: All physical sexual contact between a physician and a patient should fall within the definition of sexual abuse and result in mandatory revocation of a physician’s certificate of registration. The term “sexual impropriety” should be introduced and defined as comments and gestures of a sexual nature. The Discipline Committee should have discretion regarding what type of penalty to impose for sexual impropriety.
  • Expanding mandatory revocation: Mandatory revocation provisions should be expanded to include specified conduct of a sexual nature, which does not qualify as sexual abuse – such as being convicted of a criminal sexual offence or engaging in sexual impropriety with a patient under the age of 16.
  • Increased privacy protection for witnesses: The legal threshold for the production and disclosure of confidential medical records not in the possession of the College should be raised.
  • Immediate Revocation: The Discipline Committee should have the discretion to require that the revocation commence immediately upon a finding of professional misconduct for which revocation is mandatory, instead of following the completion of the penalty hearing (which can often be months later).
  • College to set timelines for reinstatement applications: The Discipline Committee should have the power to specify a minimum period of time (between one to five years) that must pass before a physician whose license has been revoked may apply for reinstatement (i.e. in cases where there is no mandatory five year waiting period following revocation).

Draft sexual abuse principles

Council also endorsed draft “Sexual Abuse Principles” , which articulate the CPSO’s approach toward sexual abuse by physicians and were designed to inform all future work of the Sexual Abuse Initiative. The six principles – Harm and Breach of Trust; Prevention; Physician Responsibility (Individual and Collective); Respect, Fairness and Transparency; Public Protection; and Public Confidence – are currently being circulated for public consultation. The CPSO is inviting feedback from physicians, other health professionals, the public and other stakeholders until August 7, 2015.

Additional developments

In addition to the proposed amendments to the RHPA and the draft Sexual Abuse Principles, Council made a number of decisions in furtherance of the Sexual Abuse Initiative. For example, Council approved the development of specialized ICRC panels, whose role will be to consider and make recommendations regarding penalty instructions and settlements proposals in order to enhance consistency in sexual abuse cases following referral to a disciplinary hearing. It is anticipated that the specialized panel will commence its work this fall.

The CPSO is also in the process of developing a policy regarding sharing information about sexual abuse complaints with the police, as well as analyzing the appropriateness and use of gender-based restrictions on physicians who have been found to have engaged in sexual abuse. Both issues will be considered at the next Council meeting, scheduled for September 10 & 11, 2015.

For more information regarding the decisions taken at the most recent Council meeting, see this summary document or visit the CPSO’s Sexual Abuse Initiative webpage. We will provide updates on our blog as new measures are approved and implemented.

Read More at Rosen Sunshine Health Law Blog

To Read More Elyse Sunshine Posts Click Here
To Read More Lonny Rosen Posts Click Here