Monday 6 December 1993

Regulated Health Professions Amendment Act, 1993, Bill 100, Mrs Grier / Loi de 1993 modifiant la Loi sur les professions de la santé réglementées, projet de loi 100, Mme Grier

Task Force on Sexual Abuse of Patients

Marilou McPhedran, chairperson

Pat Marshall, co-chair, Canadian Panel on Violence Against Women

Ellen Boyle

Cheryl Brown

Ontario Dental Association

Dr George Sweetnam, president

John Gillies, executive director

Linda Samek, director of professional affairs

Ontario Medical Association

Dr John Gray, chair, committee on sexual abuse issues

Dr Wendy Graham, member, committee on sexual abuse and chair, committee on women's issues.

Simcoe Legal Services Clinic

Ian Cameron, staff lawyer

Transitional Council for the College of Respiratory Therapists of Ontario

Margaret Carter, vice-chair

Linda Bohnen, legal adviser

Ontario College of Family Physicians

Dr Marlene Spruyt, president-elect

Cheryl Katz, executive director

Robyn Johnson

Jean Halliwell

Ontario Society of Occupational Therapists

Debbie Cameron, vice-president, government affairs division

Christie Brenchley, executive director

Mary Kita, co-chair, task force on Bill 100

College of Physicians and Surgeons of Ontario

Dr Joe Homer, chair, ad hoc committee on Bill 100

Dr Rachel Edney, chair, patient relations committee

Judie McSkimmings, public member, discipline committee

Dr Michael Dixon, registrar

Continued overleaf

Continued from overleaf


*Chair / Président: Beer, Charles (York North/-Nord L)

*Vice-Chair / Vice-Président: Eddy, Ron (Brant-Haldimand L)

Carter, Jenny (Peterborough ND)

Cunningham, Dianne (London North/-Nord PC)

Hope, Randy R. (Chatham-Kent ND)

Martin, Tony (Sault Ste Marie ND)

McGuinty, Dalton (Ottawa South/-Sud L)

*O'Connor, Larry (Durham-York ND)

*O'Neill, Yvonne (Ottawa-Rideau L)

Owens, Stephen (Scarborough Centre ND)

Rizzo, Tony (Oakwood ND)

*Wilson, Jim (Simcoe West/-Ouest PC)

*In attendance / présents

Substitutions present / Membres remplaçants présents:

Akande, Zanana L. (St Andrew-St Patrick ND) for Mr Rizzo

Mathyssen, Irene (Middlesex ND) for Mr O'Connor

Haeck, Christel (St Catharines-Brock ND) for Mr Martin and Mr Owens

Haslam, Karen (Perth ND) for Ms Carter

Sullivan, Barbara (Halton Centre L) for Mr McGuinty

Wessenger, Paul (Simcoe Centre ND) for Mr Hope

White, Drummond (Durham Centre ND) for Mr Rizzo

Also taking part / Autres participants et participantes:

Wessenger, Paul, parliamentary assistant to the Minister of Health

Clerk / Greffier: Arnott, Doug

Staff / Personnel:

Gardner, Dr Bob, assistant director, Legislative Research Service

Swift, Susan, research officer, Legislative Research Service

The committee met at 1539 in room 151.


Consideration of Bill 100, An Act to amend the Regulated Health Professions Act, 1991 / Projet de loi 100, Loi modifiant la Loi de 1991 sur les professions de la santé réglementées.

The Chair (Mr Charles Beer): The committee is called to order to consider Bill 100, An Act to amend the Regulated Health Professions Act.


The Chair: Our first witness today is the independent Task Force on Sexual Abuse of Patients in Ontario. If you would be good enough to come forward and introduce yourselves for Hansard and then please go ahead.

Ms Marilou McPhedran: Mr Chair and members of the committee, my name is Marilou McPhedran and I was honoured to be commissioned by the College of Physicians and Surgeons of Ontario in 1991 to chair the independent Task Force on Sexual Abuse of Patients by doctors.

I am joined today by a colleague of mine on the task force, Pat Marshall, who in many ways led the examination of the issue of sexual abuse by professionals some 10 years ago in her capacity as executive director of Metrac, the Metro Action Committee on Public Violence Against Women and Children.

I asked Pat to join me here today because frankly, as I was preparing my remarks, although you don't have written remarks because I only prepare them in my head, I realized that it might be very helpful at this juncture to ask Pat to be here not only as a colleague from the task force but also as the person who just completed a gruelling national panel on violence and to perhaps put this bill in a larger context for all of us. So if I may, I would like to ask Pat to say a few words to you.

Ms Pat Marshall: This is a very special opportunity to be here now on this our national day of remembrance for women murdered in Montreal and for all the women in Canada who have been killed and injured by violence. It feels very appropriate. First we mourn, then we work for change.

I'm here today after a terrible journey across this country with a very strong message that the most valuable work that can be done now but also the hardest work and the most necessary work is to dismantle the tolerance of the violence that is so pervasive and so with us every day and in every part of this country and this province.

There is no doubt that tolerance is the glue that's holding the violence together, and the violence of sexual abuse that involves a breach of trust is still and yet the most invisible kind of violence and violation. The tolerance of that sexual abuse involving the breach of trust is the hardest to see. It is that challenge that you share with the rest of us who are doing this work now to try to work for this so necessary change.

Bill 100 is historic proposed legislation. It's an important example of the real kind of change that is needed, because it's not cosmetic. It is not a total answer to a huge problem, but it is an important start. You are now doing the most valuable work that governments can do. As governments confer powers on others, they can and must set the appropriate standards of responsibility that will do all to ensure that public safety is upheld in the most effective ways possible.

You will know by now that the history of the tolerance of abuse in the health professions and the abuse itself is not a pretty picture. It is very entrenched; it cannot be changed and will not be changed easily. Abuse of power and trust both at the individual level but also at the institutional level, which many of us have tried to name for over a decade, as Marilou said, has been hard to recognize. It's been hard for us as a society to recognize it. Those institutions we were taught to trust have failed us so badly through their own disregard and tolerance of abuse by their members.

From me and the work, I bring you my own sense that the greatest tragedy of all, besides the violence itself, is that almost all violence that I have seen is preventable. Zero tolerance, and the principle of zero tolerance when appropriately implemented, will prevent violence and the injuries it causes. It's why the College of Physicians and Surgeons' independent task force that Marilou chaired and I sat on and the Canadian Panel on Violence Against Women both concluded that zero tolerance was the only basis. For the panel I must say that we made it the foundation for the largest national action plan that's ever been put together, formulated to try to end violence.

I have to also tell you there was much soul-searching. It was not easy to come to, and part of it was because of the uses that zero tolerance has had before. There have been such reactive, limited uses, what I would suggest are the Reaganesque uses of the term that it in fact has been very confusing. But we felt that the antidote to that was to spell out, as we did in the final report, in considerable detail what zero tolerance would mean in action plans for all sectors in society.

I would say that the media have not served Canadians well in that we have not seen those details well reported publicly; they have not been reported publicly and the report is still admittedly very difficult to get. I was trying to get copies for you today. But there are enough details. It saddens me to see when zero tolerance is a term that becomes rhetoric and is used carelessly and thoughtlessly as a blanket to be thrown over a number of actions when zero tolerance can be so useful when it is the basis of the recognition of what is wrong now, the tolerance that is in place now, the status quo that is so unacceptable and the cavernous vacuum between what we have now in health professions and what is needed to be in place to bring public safety and safety for patients to an appropriate level.

If I may just mention a couple of the principles of zero tolerance from the report that are relevant to the discussion of Bill 100, those with a responsibility for public safety have an obligation to take the most comprehensive and effective action possible to prevent violence from happening. For government legislators such as yourselves, the legislation that you create is obviously one way.

I would also urge you to recognize that legislation is not going to be enough. You will know that. One of the things you could do that would make the implementation of the legislation that you choose so effective would be to do everything in your power to ensure that those health professions that are self-regulating implement as soon as possible zero tolerance action plans that will ensure that those who have the responsibility for upholding public safety, with the tremendous power that you confer on self-regulators, will do so in the most effective manner.

In the report of the national action plan we have in place the hiring responsibility, the kinds of criteria used for appointments, for training, the kind of policy formulation that for one thing, and I know this is something that has come up during your hearings, shows the inextricable link between violence and equality. We can't keep separating these out and saying this month we're going to deal with abuse in this form but we're not going to look at the other equality issues. It was a difficult decision to come to but at this point we can't separate those out. We must look in a more comprehensive way. These action plans do it.

There is an accountability and there are mechanisms for accountability that must be in place in those self-regulating bodies. That would make such a difference. Another thing that would have made such a difference for these hearings that you've just gone through now, I was thinking last night about how different this process might have been for you if the self-regulating bodies that are in place now had all fully implemented zero tolerance in this priority commitment to safety in that way.

We must, with zero tolerance, dismantle the policies, practices and programs that are not working, and there are many in place by health professionals that are dangerous to women's health, as you've been told. We must differentiate the commitment to zero tolerance from the lipservice use of zero tolerance, and that's difficult because nobody directly says that they support violence or an act of violence or abuse directly. But the smallest changes are now being labelled as zero tolerance, and that is not adequately going to support the safety of patients.

We can discuss that a little bit more. Sometimes it's because any change is magnified for those who are very supportive and who benefit from the status quo and sometimes it is that they don't understand. Something I hope you understand is that with the kind of great fiscal pressure you are under, if we can prevent violence, and the kind of legislation that you're now discussing will help in that prevention, the economic benefits of preventing violence from happening in the first place are incredible. We're very naïve about that and the panel report also speaks to that.


Because governments and institutions have a primary responsibility to demonstrate leadership as a principle of zero tolerance, you may be confused, as the rest of us have been, by looking to the traditional sources of leadership, and one of the main ones has been the courts. It is where we look so often for leadership in this area. This has not been forthcoming from the courts because of the limited understanding of sexual abuse involving breach of trust.

When I was at Metrac I did studies of this. Sadly, although there have been glimmers of change, there has not been enough. In fact the courts are often used, as you know, as a standard for activity for self-regulation, and to the extent to which they don't understand breach of trust in sexual abuse, patient safety has been jeopardized. The lack of understanding of rehabilitation and the lack of understanding of the related issues are also a major problem that has implications in the legislation that Marilou is going to talk about.

I just want to end by saying that with the legal vacuum that has been created by the lack of leadership in the courts, this has some incredible implications not only in terms of the lack of understanding of how the traditions in the legal system are dangerous for women in a number of ways that we can talk about also, but also it puts an increased responsibility on you as lawmakers to bring out legislation that is clear and really does conform with zero tolerance, as I believe this government and the legislative drafters have understood in the drafting of Bill 100.

We can talk about the details, and Marilou will comment on those, but this is a most critical passage, and that is my major message today, although I'd like to discuss some of the other details of zero tolerance in a few minutes.

Ms McPhedran: Mr Chair, let me just do a time check with you. Go ahead?

There are a number of people around this table with us today who have spent a good deal of time and energy on this issue already. Many of you have had meetings with myself and colleagues from the task force as well as representatives from a broad range of perspectives on this issue.

I won't even begin to try to summarize what you folks have been hearing over the past intense days. However, I do want to draw a couple of observations. As someone who spent a year of my life immersed in the study of this issue and who actually ended up donating about $50,000 of billable hours in order to complete the task force, I have more than a small amount of professional commitment to this as well as a strong personal concern.

One of my observations is that I'm not sure there has been a sufficient development of the understanding that we are talking most particularly about abusers, but perhaps even more important, we are talking about enablers. We are talking about the way in which the systems that we have come to rely on in our daily lives and that we want to trust and rely on in fact enable ongoing abuse. You know that saying from the 1960s, if you're not part of the solution, you're part of the problem. The flip on that for me is that there are many ways in which we can wittingly and unwittingly enable abuse.

I want to invite you, as lawmakers, to not slide into the enabling category, to take courageously the role that you clearly have in law to lead on this, to set the standards on this. I think back to 1991 when we released the preliminary report to a storm of protest, particularly led by the Ontario Medical Association, and the way in which the choices were made by professional organizations to make their members more afraid, to not try to reduce their confusion. In the midst of that we had a private member's bill from Ernie Eves, with considerable work that was done, presented, that supported the task force's preliminary report at a time when it was not a very politically popular thing to do.

There has already been significant leadership from all three parties represented in this room and I urge you to hold on to that standard that you've already established. In some ways I want to suggest to you that it should be relatively easy because, frankly, I'm not overly impressed with this bill. The key legal changes that were recommended by the task force have simply not been realized in this bill.

If you're worried about being radical, don't worry any longer. It's okay. You are working with a piece of draft legislation that is in my opinion the minimum and the most important thing about it is that it finally names sexual abuse, and just for that, I'm here today to urge you to pass Bill 100.

Most of the government's proposed amendments further weaken the bill. I think there has been some phenomenally successful lobbying by some very rich and powerful organizations that have heavily influenced legal counsel and the drafters of this bill. I salute them in their astute use of the democratic process in bringing about such a positive result in favour of their professional organizations.

I'm saddened by the simple fact that there is a bit of a professional shell game that has been played here. I reviewed a number of the names of presenters and I noticed that you have seen, wearing a number of different caps, a number of the same people coming back to you over and over again to reinforce their message. I invite you to ask yourselves what is the difference in resources, what is the fire-power that's being directed here and to what extent will you as lawmakers be swayed by the greater resources that the professional groups have been able to bring to bear on this?

I also want to observe -- and this is something that Pat particularly wasn't too clear I should do, but I have to call it the way I see it. The Canadian Bar Association of Ontario has been depicted very often as an objective, highly professional organization. I think it is a highly professional organization, but I invite you to consider the possibility on this issue that the presenters who have come to you, given their livelihood on which they rely representing health professionals, have probably not given you what would be a more objective point of view.

I want to also invite you to understand that up until today the patients and the advocates working for patients had no money to work with. Their funding stopped over a month ago and the government did not reactivate that funding until today. Please think about the difference in the numbers of people who have come to you and lobbied you and lobbied people who work for this government. Understand that you have opportunity to take a leadership role on this legislation and to hold to the positions you have developed previously.


It's too late to improve Bill 100 to the degree that I believe it has to be improved. The task force recommendations around corroboration, around similar-fact evidence, around party status, even intervenor status, which ended up being the compromise position of the task force, none of them is in this bill -- none of them.

You have heard from a number of presenters that somehow this process has to be considered penal in nature and criminal in nature, and the charter has been invoked to you over and over again without any substantive legal analysis to tell you why the ghost of the charter is being invoked.

I want to take a moment just to raise a couple of general points about the charter because that seems to be the call to arms that is being used by lawyers and others representing the professional groups. The position that seems to have been taken in a number of different ways before you from the various briefs I've had a chance to review is that you are somehow, by enacting Bill 100, and by even considering some of these further weakening amendments the government has proposed, going to be infringing on the charter rights of professionals.

We simply don't know the answer to that until the courts have to deal with it. You have seen for yourselves how time after time the courts have identified so strongly with the professionals, so strongly with doctor after doctor in their judgments, and they don't even mention the damage to the patients in their decisions when they soften what the disciplinary tribunals for the College of Physicians and Surgeons have done in a number of cases.

So, the charter: Well, as it happens, the charter doesn't apply at the present time to disciplinary proceedings before the College of Physicians and Surgeons or other health profession disciplinary bodies. It doesn't apply. That has yet to happen in law.

However, because, with primarily the leadership of the OMA, there was so much concern and at times even hysteria among members of the profession as to their charter rights, we addressed that issue through independent legal research. A couple of the points may be helpful for you because I know there have been very serious attempts to spook you about what the charter might do to individual professional rights.

When you're talking about freedom of association under section 2 of the charter, remember that, as lawmakers, the case law already in place, all the way to the Supreme Court of Canada, gives you a responsibility and a discretion to look at infringing rights where those rights can be "demonstrably justified" in our democratic society, particularly where those rights relate to vulnerable groups. I think we would be in agreement among us today that patients count as a vulnerable group.

The other thing about the case law so far is that, where lawmakers have drawn clear lines, judges have shown a distinct tendency to respect that authority. That is your job, and to do it well will mean drawing clear lines so that judges can be guided and, frankly, so that you can help them move into the next millennium with some understanding of what happens to patients when they are abused and their trust is violated.

In regard to concerns about the principles of fundamental justice as it relates to anonymous reporting, as it relates to mandatory reporting, let me remind you that under the Health Disciplines Act and under the RHPA there will be no breach of confidentiality or knowing of names until there is an investigation. There will be no investigation unless the colleges have reasonable and probable grounds for believing that an act of misconduct may have taken place.

Under mandatory reporting, the concern is one of freedom of expression, including not being forced to express, ie, to mandatorily report on a colleague. If you refer to the existing law and the way in which this sort of requirement is tested, I think it is very interesting to ask ourselves the question: How is it that we have, in the most recent issue of the CPSO Members' Dialogue, reference made, without any concern or criticism whatsoever, about a doctor's obligation to report patients unfit to pilot aircraft, in addition to the doctor's obligation to report patients unfit to drive a car? How is it that the public interest is acceptably and adequately served by that profession when it relates to driving a car or piloting an aircraft, yet there is such enormous difficulty when it comes to reporting on abuse of patients?

One of the things that also really concerns me about some of the points that have been made to you around mandatory reporting is the way in which the question "Is this demonstrably justified in our democratic society?" has really not been addressed. The existing case law on this, which is the Sleight decision in 1989, says that where you have an infringement and it can be demonstrably justified where it is protecting the interests of a vulnerable group, then that is something that is allowed by the charter.

This is pure speculation. I won't take any more of your time with it because, frankly, it isn't something that should spook you. You make your decisions as lawmakers. The charter at the present time is not applied, and if it's applied and it's tested, so be it. That's the system we live in. Those are the rules we follow. You will have the opportunity at a later date to clarify and strengthen the legislation consistent with any judicial interpretation, but please don't let that stop you from doing what is the absolute minimum at this point in time.

I wanted to make a couple of quick comments about Bill 100 itself. If you have to fiddle with this bill, please stay as much as you can with what's already been tabled. Forget about most of the government amendments. Somehow, the drafters and whoever put this package together for you have been very heavily influenced to favour professions even more than they're already favoured. If you are doing this process here as a way of trying to level the playing field, which is an image that's been used over and over with you, then please consider the fact that there needs to be at least what is in the legislation that went through second reading.

For example, in the definition of "sexual abuse," what we heard at the task force was the doctors who took the time to come to the task force saying to us very clearly: "We want to be forced to report. Make it clear. Give us the details. If it's part of our duty as opposed to a guideline, then we will act on it." The time has come for the lawmakers of this province to make it much clearer and easier for health professionals to follow through on their duty to their patients.

If you look at the section that deals with intervenor status and parties, section 41, make one little change. Change "may" to "shall." At least do that. Bill 100, as it passed second reading, has in my opinion given you what is a step back from the existing law on the issue of parties and intervenors. As it stands in the legislation that has governed the College of Physicians and Surgeons, they already have the option of naming parties in an incapacity hearing. How is it that this isn't considered of sufficient concern and value in the public interest that that option would be left open? At least give intervenor status and don't in any way limit or preclude the option of a tribunal to give party status. The Law Society of Upper Canada has done it. There's no reason why health professional disciplinary bodies can't also do it. So at least make that one word change.

I'm greatly concerned given the number of decisions, and to give one concrete example, the Singh decision -- you may remember the doctor in Sarnia who abused a number of patients and mothers of patients. A recent decision of the College of Physicians and Surgeons of Ontario didn't even mention rehabilitation of Dr Singh. The government notes on Bill 100 talk about actually "de-emphasizing" rehabilitation, taking away from the regulations a greater obligation on the part of colleges to look at rehabilitation seriously.

You will recall that the task force took the position that nowhere in North America could we find a so-called expert on rehabilitation who would put his or her reputation on the line and say, "I can rehabilitate a sex offender." Let's be realistic about the state of the art here. It ain't there. So to de-emphasize rehabilitation when we already know that it is perhaps mythology is very dangerous and not in the public interest.


I'm going to wrap up by asking you to remember that we'll always have another crack at this. This is the first step. The way in which change occurs in our society is through incremental first steps. The kind of backlash and concern that has been expressed to you over and over again by the spin doctors and the panoply of paid representatives from health professional groups -- of course it's important to acknowledge that and to acknowledge their fears. Let me suggest to you that is primarily what they are -- fears -- and that they are not the basis on which lawmakers need to act in the public interest. Thank you very much.

The Chair: Thank you both for your presentation. We'll move right to questions.

Mr Jim Wilson (Simcoe West): Marilou and Pat, as always, I think you gave an excellent presentation. There are some points that I would like to perhaps debate and explore further with you, but I know we're limited in our time.

Marilou, I'm glad your parting comment was something like, "We'll always have another crack at it." I think the history on this issue shows that it's taken a long time to even get to this bill, and our interest has been to try to get the bill right. You said earlier in your comments that you thought it -- I think you almost went so far as to say it was fundamentally flawed in some areas, but that might be a bit strong.

But in the interests of getting it right -- and we have closure, as you know; this has to be done by 5 o'clock tomorrow. We haven't heard, as you said, from a number of survivors. We know and we recognize the faces of the repeat professionals who have appeared under different titles, but that's part of the process. That happens with all legislation. So you'll know, for the record, we've seen some repeat survivors too. So it happens as part of the process.

I do want to ask you about one specific area, and that's mandatory reporting. It's no secret, because I've said it on the public record for the past few days, that I have some sympathy for patients who are undergoing psychotherapy. The question I have is, if a patient absolutely does not want his or her physician or psychotherapist or psychiatrist to report an incident of sexual abuse with a health care provider, does the patient not have rights to direct his or her own physician in that regard?

Ms McPhedran: I think that in some ways we might be trapped by the hypothetical. In the well over 100 interviews that we did, this is one of the discussions that we had with real, live patients who'd lived through this situation, as opposed to hypothetical patients who have been conjured for you here. What was clearly articulated to us was the numbers of times that they did want their treating professional to report, and the professional didn't do it.

In the cases where the patients talked about their hesitation, what they described to us was an intelligence and a decision on their part that they would not give the information. You can do therapeutic work without naming and identifying the professional who has abused you. Where there is clear information given in that therapeutic relationship so that the patient understands from the onset that if sufficient information is given, then the treating professional has no option, the patients are in a position to stay in charge. They don't have to give the identifying information in order to be able to work on the healing process. When they're ready, they can give the identifying information, and that kicks in the mandatory reporting.

Mr Jim Wilson: Except that we've had testimony that it's not clear-cut when the patient gets to that point of ready to report. You mentioned, which you meant, I presume, as a parallel to this, the pilot's licence requirement. Dealing with psychotherapy, it's not clear during that process. At what point, then, does the treating practitioner have to stop and say, "You can't tell me any more about your life because I may have to report you"? How do you deal with that?

Ms McPhedran: That shouldn't be difficult if at the onset of the therapy and at appropriate points in the therapy, I trust in the intelligence of treating professionals to be able to say: "Let me remind you that I am under a legal obligation to report if you identify your abuser. Let me remind you. The choice is yours; the power is yours. Here's the information for you to work with that and make your decision." Truly I don't think it's that complicated.

Ms Marshall: It has been implied, if I may add, that as soon as the report goes in about the name of the abusing health practitioner, there is some sense that all of a sudden the reluctant patient is ending up at a discipline hearing, which is not the case. It is only with the agreement of a complainant that other processes can go into place. But the documentation of patterns of behaviour can then start in a very different way without activating those other processes that then go on only with the agreement of a complainant.

Mrs Karen Haslam (Perth): I really appreciate that information about hypothetical patients, because we have had cases where they've come with hypothetical cases. I appreciate the comments you've both given us and it's been very, very clear. I do want to say, though, in defence of perhaps the Chair and this committee, I think you underestimate the people on this committee.

We have had a number of people come, and you're right; we are well aware that they are physicians with different hats in different organizations --

Ms McPhedran: And lawyers.

Mrs Haslam: -- but I think you've underestimated all of us on this committee if you think we are swayed by the title "lawyer" or "doctor" or the fact that there are three versus one in those chairs. So I'm just going to pass that on for your edification.

I wanted to talk a bit about the mandatory reporting. Mr Wilson has effectively mentioned the psychotherapy involved. We've also had people come asking for exemptions in physical therapy in the massaging area. I wonder if you'd make a brief comment on that, and also -- well, I'll let you answer that, because our time is limited.

Ms McPhedran: Let me actually respond to your edification point. If you get a chance to review my words, you will find that I didn't make any assumptions about your being swayed. What I did was bring to you my observations based on my review of the presentations to you. My hope and my expectation is that, being far more astute at this process than anybody else since it's your job and you do it every day, indeed you would not be swayed. However, I was disturbed and struck by the professional shell-game aspect of this, and I needed to put it on the record. I trust that it was in no way new information for you.

Let me respond in a very personal way to the hypothetical around massage. We made a general statement in the task force report that I think applies to this specific situation. The general statement was that patients know the difference. Let me give you a personal illustration of this.

When I first moved to Toronto 20 years ago and I was part of the early 1970s kind of hippy-dippy stuff, I became enamoured with the concept of massage therapy. I grew up in Neepawa, Manitoba. Believe me, there were no massage therapists there. I was treated by a qualified, licensed male massage therapist who was subsequently delicensed for having sex with his patients. I knew the difference. I knew when it was time to confront this man and to leave the practice. It was obviously a pattern of behaviour that was repeated over and over again, particularly with young women patients, and it was ultimately what cost him his licence and the right to practise. It took years before patients who had been damaged by this got it together and were able to make the report.

I think it comes down to that over and over again. Without in any way meaning to devalue your intelligence or anything like that, please let me ask you to ask yourselves a question which we asked ourselves on the task force over and over again: What is the underlying assumption in a number of these hypothetical situations? Is the underlying assumption that women patients -- and we know the vast majority affected are women -- are stupid, that women patients don't know the difference? A former colleague of ours on the task force, who subsequently represented the CPSO, actually said in public that women wouldn't know the difference between a doctor saying "You look well today" and "You look good today."


Those kinds of hypothetical, trumped-up examples I think we can spot fairly quickly and know for what they are.

Mrs Haslam: Quickly then, would you agree to mandatory reporting on behaviour, and wording then also? You are in favour of that also?

Ms McPhedran: That was the task force recommendation. That is the one part of Bill 100 that has honoured the task force recommendation in full. Based on, as I said, the research that was done and the numbers of actual testimonies brought to us, we believe that it's a very important alarm bell just for colleges to be able to identify patterns. Even if it doesn't get beyond the anonymous reporting, that in itself is extremely important to allow colleges to do the job you, as lawmakers, have given them to do.

Ms Marshall: Could I add just one statement to that? Information on scope-of-practice issues might be very usefully circulated among the self-regulating professions. It's information that would be very useful to have if there are questions, and it's the kind of information that could be circulated very easily. One could check on that. But the information and the knowledge of sexual abuse is something that is very separate from the scope-of-practice issues so often. But to know what is in the scope of practice or what is entailed might be very useful.

Mrs Barbara Sullivan (Halton Centre): I wanted to ask you if you would comment on the Ministry of Health proposals for amendments that would include a statement of impact from the patient or the patient's representative.

Ms McPhedran: There's no doubt -- I think I can speak for both of us -- that it's important information to give to the tribunal. It doesn't substitute for intervenor or party status. Please, absolutely don't let me stay on the record as in any way supporting this as a substitute; it is not a substitute.

Ms Marshall: And the one place where the charter does become very relevant is for you as lawmakers, if I may say. Section 15 of the charter, the right of all, including patients, to equal benefit and protection of the law, is a very important force, I believe, behind the legislative drafting. Marilou, with her significant help in developing that, would agree that's the place and the spirit that we hope will be very much with you in the work that you're doing.

Ms McPhedran: Frankly, if it gets challenged it'll be very helpful at the court stage.

Mrs Sullivan: It may well be.

The Chair: Thank you both very much for coming before the committee today. We appreciate it.

Ms McPhedran: Thank you, Mr Chair. We are essentially in support of Bill 100 because we're pragmatists.

Ms Marshall: And we wish you well tomorrow.


The Chair: If I could then call our next witness, Ms Ellen Boyle, if she would be good enough to come forward. As she does so, Ms Boyle, we have a copy of your submission which has been circulated to members of the committee. So once you're settled, welcome and please go ahead.

Ms Ellen Boyle: My name is Ellen Boyle. I am a survivor of sexual assault by a well-respected Hamilton physician, the former Dr John Minich Sr. As a survivor of sexual abuse by a health care professional, I would like to strongly support Bill 100, specifically the mandatory reporting of all forms of sexual abuse. I would also like to express my concern that the needs of survivors upon disclosure are not being addressed in Bill 100. Funding for crisis intervention is essential.

If I had been asked four years ago if I had ever been sexually abused, in all honesty I would have answered no. Three years ago, denial worked well for me for as thoughts, feelings and memories appeared, I refused to acknowledge their meaning or existence.

On April 19, 1991, my world fell apart. My sense of who I was and what my world was all about came to an abrupt end. On this date, I was forced to acknowledge a horrific truth to myself. On this date, I struggled to speak the unspeakable. I struggled to speak the most difficult words I've ever spoken: I was sexually abused by my doctor.

Today's sceptics might declare this false memory syndrome. In this case, there was a guilty plea.

At the end of a radio talk show regarding the Task Force on Sexual Abuse of Patients, I was left with a flood of emotions, feelings and memories that I could no longer contain. I felt emotionally out of control. It was the provision of a hotline number to call, the promise that someone would hear and the hope that I would be believed that gave me the strength to disclose.

Disclosure was just the beginning. I was not prepared for the sense of immobilizing terror that would become part of my life. I was not prepared for the abhorrence felt in touching others or being touched. I was not prepared for the feelings of defilement, humiliation, helplessness or guilt. I was not prepared for the additional memories that would rack my body in pain. I was not prepared for the terror that would invade my nights or the isolation of my days. I was not prepared for family members who would be unable to support me. I was not prepared to struggle within systems as an occurrence number, or within a community where I was, and I quote, "one more nut case coming out of the woodwork." I was not prepared to deal with the feelings that my whole being had been destroyed.

Prior to assaulting me 14 years ago, John Minich had been my family physician for a 12-year period. John Minich delivered my three children. I had no reason not to trust. John Minich's selection of me as a patient ripe for abuse was due to my own vulnerability at that point in my life.

Following the assault I discounted my experience, convinced myself that what happened couldn't have happened. He was a doctor; I was crazy. All memories were gone by the time I walked out the front door.

For the first time in my life, I became depressed, cause unknown. A year later, I left my marriage in what I now know was an anniversary reaction to John Minich's assault. I fled in fear, fear that something horrible was going to happen. I recall needing to feel safe, wanting peace of mind and desperately needing a long hot shower.

Survivors of sexual assault by health care professionals and health care professionals are all consumers of the health care system. Bill 100 is an attempt to provide protection for all vulnerable consumers. Life circumstances can leave each and every one of us vulnerable. It is when we are the most vulnerable that we need to reach out, confident that the utmost of professional care will be given to us. We need to trust that sexual abuse will not be our fate. As consumers, we need to work together to protect ourselves, our families and especially our children from opportunistic, sexually abusing professionals.

Mandatory reporting: The mandatory reporting of all behaviour or remarks of a sexual nature that are demeaning, seductive or exploitive is essential. Prevention of further abuse may begin here. For the abusing professional, such behaviour or remarks may be the testing ground or the beginning of a grooming process of escalating abuse. Arguments that this will be too time-consuming for professionals required to report are an indicator of the level of abuse that exists.

Sexually abusive behaviour or remarks by a health care professional indicates a total disregard for the consumer at a health care level and a total lack of respect for another person at a human level.


What was permissible 20 years ago is unacceptable and intolerable today. It is the abuser who thrives on both secrecy and silence. It is the abuser who wants us to turn our heads and do nothing. All forms of sexual abuse need to be reported. There can be no exception. If we are not part of the solution -- in attitude -- we can become part of the problem.

Funding: As initially presented to the professional relations branch of the Ministry of Health on October 27, 1992, I have grave concerns that the issue of crisis intervention has not been addressed.

An immediate and caring response would facilitate the survivors' healing process rather than delay it. For survivors to be required to wait until a finding of guilt before any assistance is afforded them is both cruel and inhumane.

Survivors should not be left with only the crisis line of a sexual assault centre when their emotional pain is intolerable. Survivors should not be arriving at hospital emergency departments with panic attacks and abuse-related physical pain. Post-traumatic stress is costing the health care system millions of dollars for physical ailments which appear to have no cause. Crisis intervention is both preventive and cost-effective.

While immediate therapy of choice would be the ideal, I would like to suggest the following, which should not necessitate a finding of guilt:

(1) A crisis hotline operating 24 hours a day to deal specifically with the impact of abuse by health care professionals. Such a service could also be used to develop a needs assessment of survivors, and look at how these needs could be filled.

(2) Educational workshops to be set up and made available as needed for survivors and their families and/or support people. Topics could include the following: trauma -- what it is, its effects; sexual abuse -- short-term, long-term effects; post-traumatic stress; flashbacks -- how to cope; panic attacks -- symptoms, how to cope; coping strategies; system survival; self-care; discipline process, criminal process, criminal compensation and civil litigation.

Education and knowledge are the key to the restoration of personal power and control. Survivors need to know that their reactions and feelings are normal responses to an abnormal occurrence in their lives. Survivors often need to connect with other survivors of professional abuse. Survivors need resource material and coping skills.

Funding for the above would come from the compensation fund for survivors. Eligibility would be a lodged complaint with any college or association of regulated health professionals.

Educational workshops might also be considered under patient relations programs, an area where survivors, as a group, are noticeably absent regarding education and needs.

Survivors are patients with very specific needs, the greatest of which is the need to trust.

Funding, maximum amount and period of eligibility: Extenuating circumstances may necessitate the extension of one or both of the above criteria. A process needs to be in place whereby neither the maximum amount nor the period of eligibility is fixed, and with reasonable grounds an extension may be applied for.

Sexual abuse by a health care professional is traumatizing. An immediate and caring response from colleges, associations and the community is essential for healing. With this support, we will heal well.

I would like to thank the Ministry of Health for the opportunity I've had to provide input into Bill 100. I thank all committee members for providing me with the opportunity to speak. Thank you for listening.

The Chair: Thank you very much for coming and sharing those thoughts with us, and in particular for the recommendations at the end. We appreciate it.


The Chair: If I could then call on our next witness, Miss Cheryl Brown. Welcome to the committee and please go ahead.

Ms Cheryl Brown: Members of the standing committee on social development, I am here today to share with you my experience of reporting a psychiatrist for sexual abuse to the College of Physicians and Surgeons of Ontario and to share my recommendations regarding Bill 100. I have copies of my presentation that I'll leave with you.

I laid a charge of sexual abuse against Henry Fenigstein in November 1991. This was termed "laying a complaint of professional misconduct due to sexual impropriety." This misconduct involved his having sexual intercourse with me while I was his patient and being treated by him for depression. The abuse took place over a period of six years during every individual therapy session.

I submitted a three-page statement to the CPSO on November 11, 1991. In the following months, six other women presented evidence of sexual abuse by Fenigstein to the college. As well, two former co-therapists of Fenigstein and a physician gave evidence of having been told by patients, clients or therapists of 19 other instances of sexual abuse perpetrated by him. Statements were taken from these nine witnesses and are on file at the college.

On January 2, 1992, Fenigstein verbally admitted guilt to the college on my complaint of sexual abuse and handed in his licence to practise. This is an action sometimes taken by physicians close to retirement to avoid further prosecution and public disclosure. In fact, I was told by the practicum coordinator at OISE, which has placed students at his group therapy practice for many years, that Fenigstein had telephoned her to state that he was retiring his licence due to poor health.

On March 25, 1992, he tendered a written admission of guilt to the college following frequent requests from the investigator to do so. Therapy groups continued to be run out of his office/home by therapists he had trained until April 1993, two weeks before the disciplinary hearing. He continued therefore to have access to patients. Three OISE students continued their training at his office until April 1992, four months following his admission of guilt of sexual abuse. The public, including all of his former patients and those continuing to receive group therapy at his office, therefore remained unaware of the abusive practices of this doctor during the 16-month period between his admission of guilt and the disciplinary hearing.

At the disciplinary hearing, held May 17, 1993, an agreed statement of facts, agreed upon by the college and defence lawyers, and a victim impact statement I had written were read. The statement of facts described only the sexual abuse done to me. Although the college had evidence from nine other witnesses that Fenigstein was a multiple abuser, none of this was presented, giving the erroneous impression that his acts were solely against one person. The public was therefore not fully informed and thereby fully protected, and the panel made a finding of an inadequate penalty.

The panel made the decision at the hearing to accept Fenigstein's admission of incompetence and to revoke his licence in retrospect. They decided not to fine him. They therefore did nothing more than sustain his own admission of guilt and incompetence. In refusing to publicly censure his behaviour by imposing the maximum penalty, both revoking his licence and levying a fine, the panel sent a message to physicians that sexual abuse is not fully censured and is therefore to some extent excusable, and to survivors and the rest of the public, the message that zero tolerance is a myth and that the college does not in fact protect the public but protects its own.

I have subsequently been advised that there has never been a case where a physician has had his licence revoked and a fine imposed as well. Surely the maximum fine should be automatically imposed on any physician found guilty of sexual abuse.


I learned only late in the process that all of the evidence was not going to be presented. I protested this and urged the college lawyers to go forward with a full hearing if that was necessary to present all of the evidence. I was told that the other evidence was being used to ensure a guilty plea and that they couldn't present it in the statement of facts because none of the other witnesses had made formal complaints.

I subsequently learned that at least two of the other witnesses had not been informed that they could lay complaints until late in the process, nor were they informed that unless they laid a complaint, their evidence of abuse would not be heard. They stated that they felt intimidated and upset by their contact with the college lawyers and decided not to proceed with an individual complaint if this was an indication of the process and what lay ahead. I referred to the other evidence in my impact statement, but was told this would not be accepted by defence counsel and had to delete this information.

I entered the process of charging Fenigstein with sexual abuse with the hope that the college had adopted the spirit of the recommendations put forth by the Task Force on Sexual Abuse of Patients. These recommendations would make the process a more equitable one and recognize the harm done to complainant-survivors by the abuse and then by the present process. I was prepared to work fully with the college.

My original hopes for the truth to be heard and justice to be done and be seen to be done changed to feelings of futility, despair and a sense of personal failure when I learned that the college would not be acting quickly on the guilty plea and then would not be presenting the full evidence of the abuse committed.

My repeated attempts to have input into the process were often greeted defensively, minimized, misconstrued or patronized. I became increasingly aware of my position of powerlessness. I had no rights in the process beyond that of being a witness. This had an increasingly debilitating and demoralizing effect as I came to realize that I had no recourse to make happen what needed to happen in this case. I saw an open-and-shut case against a multiple abuser being handled in a minimal, inadequate manner. The goal seemed to be expediency, not a full disclosure of the facts.

I believe that the problem underlying my experience with the college was my lack of status and therefore rights in the process. For this reason, I am recommending adoption of guaranteed full-party status for survivor-complainants. This, as you know, would give the right to make legal submissions, introduce evidence, cross-examine witnesses and appeal decisions. Full-party status would affect the whole process and make it more equitable. It would ensure that all interests involved in a case would be brought to the attention of panel members, resulting in better and more just decisions.

Full-party status would have given me a voice and input into the process. Because I had no status, I had no right to dispute or challenge the facts presented or omitted or of any real input into how the case would proceed. The Fenigstein case therefore became an example of a situation in which the penalty eventually imposed was not commensurate with the actual facts or harm done by him.

Arguments I have heard voiced by representatives of colleges and professional associations against full-party status seem to me to indicate a lack of trust in or recognition of the integrity of survivor-complainants -- members of the public who have come forward to bring an abuser to justice. A concern was expressed that we might have a different agenda. My agenda was for the truth to be heard and justice to be done. What was theirs?

I also believe that survivor-complainants need to be given the right to legal representation paid for by the college. At present, of all the lawyers involved in the process, none represent the interests of the complainant. I learned that it is far too complex a system to negotiate without legal advice. Giving the survivor-complainant full-party status with legal representation would ensure a more balanced, equitable process and better, more just decisions. That the colleges absorb the cost of the legal representation should be seen as part of being self-regulating and of being responsible and responsive to the interests of the public. As a public health nurse and a member of the College of Nurses, I fully support this myself.

I would like to speak next to the issue of incompetence. Sexual abuse needs to be seen not only as professional misconduct but also as incompetence. Does not the use of a patient by a physician to gratify his own sexual needs indicate "a lack of judgement or disregard for the welfare of the patient such that he is unfit to continue to practise," the definition of incompetence as stated in the RHPA? I think so.

The college is presently reluctant to declare a physician found guilty of sexual abuse as incompetent. Fenigstein admitted to incompetence and this was accepted by the panel. Would they have found him incompetent independently? Their record of decisions indicates probably not. The reluctance to make a finding of incompetence means that if physicians who are found guilty of sexual abuse decide to appeal, they are free to practise until the appeal is heard, up to two years. Is this protecting the public? I don't think so.

I would like also to recommend full mandatory reporting, including "behaviour or remarks of a sexual nature." These have no place in a professional patient-client interaction and cause great harm. They are often the precursor of physical sexual abuse as well.

Those who speak against mandatory reporting with professed concern of disempowering survivors are, I believe, mistaken. Survivors are protected by the provision of not having their name disclosed without their consent. A health professional reporting abuse is in fact affirming that person's sense of self by stating in effect, "This is serious, this is unacceptable and must be acted on in order to protect others." It will help her move in the direction of recovery/healing by placing the blame clearly and unequivocally with the offender. This is empowering, not disempowering.

Mandatory reporting need not therefore harm the therapeutic relationship, a fear I have heard expressed by members of the Ontario Medical Association, the Ontario Psychiatric Association and others. It is mandatory reporting, not mandatory participation in the disciplinary process. As well, the fear expressed of mandatory reporting to a system that is harmful speaks to the need to reform the system, not to limit the reporting.

If mandatory reporting had been in effect, many women, including myself, might have been protected from Fenigstein's sexual abuse. Contrary to the assurance made by a psychiatrist to this committee, that profession doesn't act as a shield or protector of abusers. I have been made aware that people in the psychiatric community knew for years that Fenigstein was sexually abusing patients. Mandatory reporting would have given them no choice but to report their knowledge of this abuse. As well, my disclosure to health professionals of his sexual abuse would have been reported to the college.

I would like to speak finally on the issue of compensation to survivor-complainants. I feel survivor-complainants should be adequately compensated for the devastating, far-reaching harm done by sexual abuse from health professionals. Compensation shows acknowledgement of harm done and responsibility taken. I believe that the definition of "therapy" and "counselling" should be broad enough to encompass whatever the survivor finds helps her in her recovery/healing.

I fear a conflict of interest if the compensation fund is administered by the same college that is making decisions regarding guilt. Perhaps in the interim the advisory council could administer the fund and have the task of setting up an independent body to do so in future.

Funding, I believe, should come from levies on college members -- I myself would support this at my own college -- repayment of OHIP fees paid to the abuser during the time of the offence and from the physicians found guilty of sexual abuse.


I am glad to have this opportunity to speak before you today. I have grave concerns as to the system now in place that continues to reabuse and traumatize women who come forward to report sexual abuse.

The college has been given the ways and means to make it a more equitable and just process through the recommendations of the Task Force on Sexual Abuse of Patients. To date, they have shown a lack of will to do so. Changes have been made, but they are largely cosmetic and do not improve the complainant's survivor status and rights in the process. In fact, I am afraid the cosmetic changes lure complainants into a false sense of security from which we emerge much later to find that great harm has been done.

Bill 100 is a step in the right direction and hopefully will move the colleges along, particularly if it reflects the concerns and experiences of the survivors and survivor advocates who are presenting before you. If the College of Physicians and Surgeons of Ontario continues on its present course of resisting fundamental change in the process, of showing an alarming lack of understanding and knowledge of sexual abuse and of perpetrators and of continuing its reabuse and retraumatizing of survivor complainants, I believe this points to the need of having this work done by an independent body which is educated, aware and responsive to the issues of sexual abuse by health professionals. Thank you.

The Chair: I'm afraid our time is pressing. That was a very thorough presentation and recommendations. On behalf of the committee, we thank you very much for coming here today.


The Chair: I then call on the representatives from the Ontario Dental Association. Welcome to the committee. If you'd identify yourselves for Hansard, and then please go ahead with your presentation.

Dr George Sweetnam: The Ontario Dental Association is pleased to have this opportunity to speak with the committee on Bill 100. I am George Sweetnam, the president of the Ontario Dental Association. With me today are Mr John Gillies, our executive director, and Linda Samek, our director of professional affairs.

Because Linda has worked so closely with our members and the many other interested parties on matters related to Bill 100, I want to ask her to outline some of our specific concerns about the current proposals.

Ms Linda Samek: The Ontario Dental Association is a voluntary organization which supports dentists in the delivery of exemplary oral health services. Our members recognize the privilege granted to them by society and we pledge to uphold the moral, ethical and professional responsibilities outlined in the ODA code of conduct. In part, that code states that we shall "recognize and respect the worth and dignity of all persons who entrust themselves to our care."

The ODA believes that dental patients, and indeed all patients seeking health services, deserve to be treated in a safe, non-threatening environment. Ontario dentists support the implementation of legislation that will attempt to ensure that the office is a safe place for patients. We support get-tough legislation that will permit the governing bodies to prosecute abhorrent behaviour. Legislation should provide very clear direction to the colleges, to the regulated practitioner and to the public. We agree that there is a need to prevent sexual abuse of patients.

Sadly, we do not believe the proposals before us will meet fully the important goal of patient protection. We are very much afraid that the public and the media discussions which have surrounded the report of the CPSO Task Force on Sexual Abuse of Patients have led the Ministry of Health to develop an excessively broad and sweeping definition of "sexual abuse." We are concerned that the definition goes too far, that the current proposals will take the care from health care.

We know some will consider our comments insensitive, but we assure you that we take this matter very seriously. It is because we want to have legislation that works that we implore committee members to examine the complexities of implementing the current proposals. We ask you to consider the impact Bill 100 will have on the delivery of health care. The compassionate, calming and reassuring touch that has been demonstrated to be an important part of all healing arts will be deemed forbidden. Practitioners will be afraid that their honest interest in the feelings of their patients will be misinterpreted by either the patient or a third party.

We believe the definition of "sexual abuse" in Bill 100 goes too far with the phrase "of a sexual nature." This phrase is open to an excessively broad interpretation. The definition should be clearer and more reflective of the intent of Bill 100. The definition should not be so broad that it might easily capture the compassionate and caring health professional who is innocent of any wrongdoing. Given the drastic consequences of being charged with sexual abuse, no practitioner should be accused falsely because of poorly worded legislation that might be open to vast interpretation. We don't want the mandatory reporting process to be triggered by any of the 23 other practitioner groups simply because they do not know or understand the full circumstances of a touch in the course of practising any of the 24 regulated health professions. Therefore, we encourage committee members to qualify "touching" so we do not encourage practitioners to erect needless barriers between the patient and the provider.

Further, we do not agree that remarks of a sexual nature should be portrayed as sexual abuse. Let me qualify this by stating very clearly that the ODA does not condone any practitioner's use of loose, inappropriate, offensive, improper and simply stupid remarks. At the same time, we believe that it is the exploitive nature of the remarks that might classify them as abusive.

We recommend that the category of remarks and behaviour be dropped from the definition of sexual abuse. Here we suggest that you consider the value of verbal abuse remaining as a matter of professional misconduct in the regulations of each of the RHPA providers. As currently outlined in Bill 100, we believe that convictions under the category "remarks of a sexual nature" would be extremely subjective. The rules would be applied differently from complaint panel to complaint panel and from profession to profession.

When it comes to the use of language, we implore you to invest in education to sensitize practitioners and the public to acceptable behaviour for both genders and all cultures. We need to change poor behaviour and empower the public to complain about inappropriate remarks, remarks that would be reasonably regarded as being disgraceful, dishonourable and unprofessional.

As we stated earlier, we need get-tough legislation, legislation that will, at the least, permit our colleges to punish or, as required, to get rid of the very bad apples who violate the patient-practitioner relationship. But we need to do more than merely punish offenders. Prevention strategies are essential.

We recognize the difficulty in defining sexual violations in a responsible manner while balancing the needs of the professions and protecting the rights of the patient. We do not believe that the current proposals will resolve the implementation problems we have outlined.

Our concerns about the definition are heightened by the mandatory reporting requirements. The reporting requirements are central to making this legislation work, and the definition is key to the triggering process.

We have many concerns about mandatory interprofessional reporting as it relates to touching. We simply do not have a comprehensive understanding of the touching that might be common in the delivery of some health services. Honest misunderstanding of the roles of others would create problems for the system and the patient. Patients may wrongly assume that a third-party report deems guilt.

In general, we also object to reporting a practitioner to his or her college without the consent of the patient. We believe that the colleges require detailed information about the incident for appropriate follow-up. We do not believe that unsubstantiated third-party reports will lead to convictions.


If we are to stamp out abusive behaviour, we should provide the patient with needed information to initiate the complaint process, and where it is agreed that a third party will be required to file a report, the report should include the patient's name.

Our final comment on mandatory reporting relates to the report of the counselling professional. In the future, will these regulated providers be required to break patient confidentiality when treating members of the clergy, teachers and cub scouts or others who hold a position of trust, or will regulated health care providers remain the only group forced to seek care from the unregulated and unqualified provider?

We do not see any element of public protection in the requirements to have regulated providers ignore their duty to protect the confidential nature of their patient-practitioner relationship. The end result is more likely to eliminate any possibility of self-initiated treatment that could prevent or stop abusive behaviour.

Finally, we ask for clarification about when the patient-practitioner relationship ends and consensual relations might begin. The bill does not appear to draw any distinction between exploitive, abusive and consensual relations.

The ODA continues to believe that it is the test of exploitation and the abuse of trust that should determine the wrongfulness of the situation. We do not support a blanket approach to banning personal consensual relationships between a patient and their dentist. While the practitioner may need to sever the professional relationship with the patient, we do not believe there is any magic to the three-year solution that has been proposed by some professions.

We believe the Supreme Court decision on this matter is instructive. The two-step test, which includes exploitation, is the legal measure for determining sexual battery in the patient-practitioner relationship. We encourage committee members to explore this matter during your review of Bill 100.

In summary, we agree that we must develop mechanisms to prevent abhorrent behaviour. As an interim step, we support measures that will provide due process for victims and providers: legislation that will permit the colleges to identify and punish practitioners who have been found guilty of sexually abusing their patients. But we cannot move forward without establishing clear definitions of sexual abuse. Both practitioners and patients need to know the rules about appropriate sexual boundaries.

In our view, public education is a key to establishing patient expectation. Because females are the target of the vast majority of sexual abuse in our society, we see the women's directorate playing a lead role in providing related resources to the public. In this way, the benefits will not be limited to the health care setting.

Today we are here to pledge our commitment to work with all parties to implement strategies designed to protect patients. Given the complexity of the matters before us, we encourage further study of this legislation. The expediency of political correctness should not force the adoption of vague legislation.

Finally, given the significance of the RHPA and the RHPA amendment act, we recommend that a comprehensive review of this legislative initiative be undertaken within three years of proclamation.

We thank you for your attention.

The Chair: Thank you very much for your submission. We have time for one question.

Ms Christel Haeck (St Catharines-Brock): Actually, I have several, but I will raise the first one I thought of, and that's on page 2. At the top of the page you talk about "the compassionate, calming and reassuring touch." Having just visited the dentist on Friday for some very necessary work on a molar, I informed him that in fact it was white-knuckle time, and he and his technician handled it, in a very professional matter, I might add, realizing that I'm not enamoured with having my teeth drilled. But I have to say that in all the years I have used a range of health care practitioners and not always felt calm about the experience, I have never had a doubt that I would be able to tell the difference between professional touch and something that would start to meander into something that would be considered sexual abuse.

Maybe these grey hairs say that I have reached a certain age, which I have, but I do believe that, and I endow the patient with the ability to tell the difference.

Mr John Gillies: You're absolutely right. We don't question that in our submission. The concern is not the patient's perception; it's the third party quite often. There's a compulsory reporting aspect. Someone walking by, they see the dentist or some other practitioner with their hand on a patient or if they're reaching around the patient with an instrument, or whatever, they're close to places where professionals shouldn't be touching; there's a very significant concern about the mandatory reporting aspect of a third party in the office, or whatever.

There's also, quite frankly, the definition of what is touching. I can certainly appreciate that anybody can determine, if you're the recipient of the touch, what the intention should be. But that doesn't prevent someone from taking that as an abusive circumstance and reporting it and hoping that they would win the case. Just the fact that it's there and available makes it subject to abuse, and that would be our area of concern.

Ms Haeck: I realize the time -- I will not proceed with this -- but I would like to stress that I don't totally agree with you because I think most people who've had occasion to be in a medical care or health care office would probably be able to tell the difference.

Mr Gillies: I would suggest, though -- such as nitrous oxide conscious sedation, where patients are under severe sedation, hallucinating or whatever -- there are lots of circumstances that give rise to our concerns on a professional basis. We can address that in a submission we'll make in writing in the future.

The Chair: I regret that our time has run out. Thank you very much for coming this afternoon.


The Chair: I call on the representatives from the Ontario Medical Association, please. Welcome to the committee. If you'd be good enough to introduce yourselves, then please go ahead.

Dr John Gray: Thank you. We were concerned initially that the Ontario Medical Association in fact would not be given an opportunity to appear before this committee. You'll recall that we were originally slotted for November 23, and actually Dr Graham and myself were here and ready to speak, but we didn't learn until late in the day that we would not be given the opportunity because of the limited hearing time. We're thankful, because you've moved into extended hearings, that our name has come up and we are able to speak.

My name is John Gray. I'm a family physician from Peterborough. I'm a member of the board of directors of the Ontario Medical Association and also chair of the OMA committee on sexual abuse issues. With me is Dr Wendy Graham, who's also a family physician, from North Bay. Wendy is a member of our committee on sexual abuse and is also chair of the OMA committee on women's issues.

The OMA's formal submission to this committee has been given to the clerk, and I trust it's been circulated. We've decided today not to review or summarize that submission in our verbal presentation, although we would be happy to answer any questions you might have. Instead, Wendy will start off by talking about the underlying current that flows through the government's approach to sexual abuse in the health care sector, and I'd like to close by talking about the process that's brought us to this point.

Dr Wendy Graham: I want to talk to you briefly about what Bill 100 says to me as a female practitioner and as a woman. The vast majority of physicians became doctors to heal, to provide sound, trustworthy, nurturing and effective care. As the minister stated in her speech in the Legislature on second reading, the vast majority do just that.

We all want to get rid of abusive health care practitioners, get rid of practitioners who exploit their position of power and trust. We support heavy penalties for abusive practitioners and we support measures that will deter, identify, discipline and root out sexually abusive practitioners. There is no place for such people in medicine, but there is an implicit assumption in the theme of Bill 100 that is wrong and offensive: that sexual abuse is only a women's issue rather than a societal issue, and that women as a group require the protection of the government.

In fact, sexual abuse involves children of both sexes, as it involves men as victims too. Most women are neither victims nor want to be seen as victims nor want to be treated as victims. We do have to do more to train and educate health care practitioners and health care consumers about their rights, how to exercise those rights and how to distinguish between sexually abusive or offensive behaviour or touch and what is therapeutically necessary and accepted. We have to rebalance the relationship between the practitioner and the patient. Bill 100 doesn't do this. In fact, it may deter the progress in this direction. It is impractical to legislate attitudinal change.


We agree that sexual violation and sexual touching, because of wrongful intent and harm, are unambiguous and must be mandatorily reported. But what about remarks and behaviour; remarks and behaviour that may be misunderstood, where there is no intent to harm or cause offence and where no offence is caused; remarks and behaviour that are irritating, ignorant or offensive, but not sexually abusive? One of the most offensive and intrusive aspects of this legislation is that it takes away from the patient's right to decide how they want to respond to remarks and behaviour that are offensive or abusive. In fact, in that respect Bill 100 disempowers and dehumanizes patients -- men, women and children.

I am very concerned that Bill 100 will deter patients from seeking treatment for sexual abuse. They will rightly be afraid that if they do, regardless of their wishes, a report will be generated and the system will take over. This not only revictimizes the patient; it will likely neutralize whatever therapy is being provided. We have to recognize that most victims of sexual abuse require a great deal of therapy and treatment before they are either ready or able to come to grips with the abuse or challenge and confront the abuser. Victims of sexual abuse must be able to find a safe place for treatment, and that safe place must include the regulated sector if they so choose.

Somehow, Bill 100 got mixed up in its objectives. It set out to deter, identify and discipline sexually abusive practitioners, and that's something we all support. But patients' rights, patients' privacy and patients' self-determination somehow became subordinate in the request, and that's wrong. Those ends don't justify the means. Victims have rights too; they don't lose their rights as a consequence of being sexually abused. But that's exactly what Bill 100 appears to do. We don't think this is right.

In this regard, the OMA supports the position of its section on psychiatry in the letter to Paul Wessenger dated December 3, 1993. On page 3 of that letter, the section on psychiatry has stated:

"Finally, in the case of the competent patient, able to speak with free will, who refuses permission to report, should a psychiatrist have the obligation or even the right to report, should the government be able to legislate disclosure, should victims' groups, victims or anyone else be able to dictate reporting? More simply put, must the psychiatrist, government, victims' groups or anyone else have to speak for this patient, or should this patient be allowed to speak for themselves? Should not this patient have a choice?"

We are very concerned that mandatory reporting for remarks and behaviour will deter self-referral by abusive practitioners seeking help for their problems, because they'll know that when they seek help, a report will be generated by the treating practitioner.

I am also very concerned with the growth of gender sensitivity in health care that's leading, in my opinion, to gender discrimination in health care. We are on the verge of creating a system where male doctors deal with male patients and female doctors deal with female patients. The result is not good for women, because it will mean that many women will be denied the health care that they need, where they need it and when they need it.

I want to put to this committee some of the questions our members are asking us: Will Bill 100's prohibition against touching or remarks of a sexual nature chill a physician's ability to provide effective care? Will these prohibitions increase physicians' reluctance to perform certain clinical examinations that would normally be appropriate? Will they increase the physician's reluctance to raise or respond to patients' concerns or questions about sexual behaviour? Will they disempower women patients from seeking counsel or treatment for sexually sensitive ailments?

We are not naïve. The fact remains that Bill 100 will go forward largely as it is. The government's attitude over the past year has made this abundantly clear. But in good faith, we want this committee to understand what we fear Bill 100 will do. It will not be as effective as it could have been. In fact, we've already seen evidence of Bill 100's negative impact on the physician-patient relationship. Bill 100 will have consequences for health care that no one in the practice of medicine wants or that health care consumers, if they really knew, would want.

I'll turn things back to Dr Gray.

Dr Gray: Although the medical profession was slow to come to grips with the extent of sexual abuse and its impact on patients, the work done by the OMA and by the CPSO has been critical in the development of Bill 100. We were pleased that this was acknowledged by the government task force and by the Minister of Health in her speech at second reading.

However, on November 24 in this Legislature, a member of this committee was quoted in Hansard as saying: "I think enough is enough. I think it's time we said, `We've had our chance.' We've worked two years on this particular piece of legislation. It's been held up time and time again in committee."

In light of that comment, I think it's important to review some of the events that have brought us to this point. Keep in mind that the final report of the CPSO task force was released on November 25, 1991. The college itself released its final recommendations on the report on September 15, 1992.

An interministry working group was established in response to the college recommendations and issued the government white paper, Taking Action Against Sexual Abuse, on October 8, 1992. That report dealt with 29 of the 60 recommendations made by the CPSO.

On October 28, 1992, the Ministry of Health sponsored a round table discussion on the Taking Action document. It is important to note that this was the first opportunity for associations and colleges outside of medicine to discuss the issues being raised and the actions being proposed. This was a little more than 13 months ago.

November 6, 1992, less than a month after its release, was the deadline for affected or interested groups to respond to the Taking Action document, and on November 25, 1992, about two weeks later, Bill 100 was tabled in the Legislature. On July 29 of this year, Bill 100 went through second reading in less than two hours of debate and was referred to this committee on that day.

From the commissioning of the CPSO task force to now is about three years, but for the other regulated professions, close to 50,000 practitioners, the process to this point has been just slightly more than one year. All of us saw Bill 100 for the very first time one year ago, and it's scheduled to pass and be proclaimed before this month is out.

We ask you to compare that to the Health Professions Legislation Review, which has taken 11 years now and is still not complete, or the tobacco control legislation, which has been promised for two years and was tabled for first reading just a few weeks ago, or the legislation on graduated licensing, which has been in the mill for over two years.

Bear in mind as well that there have been abrupt and significant changes in direction in the approach to sexual abuse in the health care sector over that same period. Bill 100 contains major and unexplained changes from both the CPSO task force recommendations and the government's own white paper, Taking Action. The ministry has floated, from time to time, proposed changes to Bill 100, but the extent and precise nature of amendments have never been clear.

As an illustration of the type of confusion we have had to deal with, at our last consultation session the participants spent considerable time and energy debating the ministry's proposal on remediation, only to be told at the end of the day that the wording the ministry intended was not the wording set out in the papers the ministry had circulated for the consultation. The difference in wording was so great that it meant that the time spent had been largely wasted. At times we've asked the ministry for explanations of what certain clauses of Bill 100 mean or are intended to mean, only to be told, "We don't know" or "We're not sure."

The points I wish to make are these:

This bill, in fact, has come together remarkably quickly. Any delays in bringing this bill forward are not attributable to victims or to survivors, to the health care associations or to the regulatory colleges. In fact, the government itself has acknowledged several times our leadership role in addressing this issue.

We think that victims and survivors, the associations, the colleges, health care consumers and the public have been denied due process in Bill 100.

We've been working with a target that has been sometimes moving, at other times obscure.

We have not had the opportunity to examine alternatives and options. Given the very short time between the release of the Taking Action document and the tabling of Bill 100, it's fairly obvious that the government's mind was made up.

We have not had the opportunity to express our views fully and effectively to the government. We have been restricted to 15 minutes in our presentation to this committee. A number of groups that wanted to appear before this committee have not been able to. We understand that this committee has only one day to conduct clause-byclause of this bill and to consider the host of amendments that have been proposed, including our own. After one day of committee hearings, the time allocation motion was applied to limit debate at third reading to two hours.


We have not had the opportunity to fully consult and effectively consult with victims and survivors in an attempt to arrive at consensual and cooperative solutions and understandings to enhance the effectiveness of any legislation.

If there was general support for Bill 100, denial of due process wouldn't matter so much, but Bill 100, in our view, is seriously flawed. As a result of these flaws, it will not achieve the objectives of government, the victims and survivors of professions, or the objectives of the regulatory colleges. You've heard that in testimony before this committee day in and day out. Bill 100 has done a remarkable job of falling short of the expectations of nearly every constituency.

To be effective, Bill 100 must be and must be seen to be a balanced, appropriate and effective response to the very serious issue of sexual abuse by health care practitioners.

It is very intrusive legislation. The colleges and associations have spent a lot of time studying Bill 100 from very different perspectives and have all arrived at much the same conclusion. Bill 100 is not seen by health care practitioners as fair, measured, or likely to be effective.

Because discussion of Bill 100 has been foreclosed, because the government has decided to give short shrift to our objections, our concerns or our alternative solutions, this legislation lacks the credibility that is essential to its implementation.

There is no reason for this haste. There is no particular reason that Bill 100 has to be proclaimed with the RHPA. There is no particular reason to foreclose the discussions and consultations on Bill 100 that were beginning to bear fruit. Bill 100 is important legislation. It had potential to accomplish something worthwhile. It merited more careful consideration.

Although this legislation has been developed in haste, it will have long-term impact. This rush to judgement on Bill 100 will have negative impact on innocent physicians, on vulnerable patients and on our health care delivery system.

We'd be happy to respond to any questions.

The Chair: We're tight on time but we do have time for one question.

Mr Jim Wilson: You've given very strong comments and strong condemnation of the bill.

I have great sympathy, and expressed it in the limited debate we did have in the Legislature on second reading, with respect to the time frame here. I too don't understand why the government is in such a hurry to proclaim this at the same time as the RHPA 1991, because there are problems with it. Whether people like it or not, it's the health care professionals who have to make this bill workable, and they are telling us repeatedly that there are a lot of flaws in the legislation.

I had a very interesting discussion last night with some people who thought they knew a lot about this legislation. In mandatory reporting, and particularly, as you've mentioned, referral to your psychiatry section, there seems to be an impression out there that this bill will catch sort of all the crimes committed by health care professionals.

In, for instance, the mandatory reporting in the course of psychiatric treatment, I said to these public persons: "What happens in the case of murder? If somebody appears, whether it be a patient from the general public or a health care professional who's requiring psychiatric services, psychotherapy, there's no mandatory reporting of murder. There's no mandatory reporting of rape."

I want to ask you specifically that question. If someone were to admit having raped a patient, and this abuser is receiving psychiatric treatment, for example, then there's the mandatory reporting. We had a great discussion last night whether that goes strictly the sexual abuse discipline route or whether it continues to be a criminal matter. The abuser should be hung, in my opinion, for that conviction.

There seems to be a lot of confusion out there. People are seeing this bill as a cure-all for getting all of the abuse out of our system. It seems to me that for some reason, we've taken sexual abuse, put it on a pedestal and said, "This is the most important and most heinous crime occurring among health care professionals."

I only raise that as a general point because, you're right: If we had more time, we actually might be able to do some good for society with respect to all the harm that's going on out there. We've taken a very narrow issue, which does concern a lot of people, I agree, but there are many other things that you would hear in the course of your duties that are heinous crimes to society and yet you have no mandatory reporting there.

I just want you to comment on what I know is somewhat of a rambling statement but it's somewhat of a frustration when I talk to people who think this is somehow a cure-all and a great step. I have my doubts about that.

Dr Gray: I think you've touched on a point which is a sore one for the profession -- in our case, doctor-patient relationship, but in all of the other health care professions. Particularly psychology, and others, feel very strongly that the doctor-patient relationship and confidences that are disclosed during the course of that relationship are sacrosanct. Society has in fact intruded through legislation on to that confidentiality provision on a few occasions. By and large, the professions support it if the profession at large believes that the good of society is necessary for this kind of intrusive legislation; for example, the mandatory requirement to report child abuse, the mandatory requirement to report unfit drivers and so on. We accept the intrusiveness on to the doctor-patient relationship if we honestly believe the good of society outweighs the sanctity of that doctor-patient relationship.

You touch on heinous crimes, and I quite honestly can't believe those sorts of issues won't be raised in the future. At the moment, we are only obliged to report certain incidents.

Our profession does not support mandatory reporting of the words and gestures issue because of the difficulty in interpreting exactly what those words and gestures meant from the doctor's mouth and how they were interpreted by the patient. Because of that uncertainty, we cannot accept the fact that it should be allowed to intrude on the sanctity of the doctor-patient confidentiality.

The Chair: Thank you very much. I'm sorry we don't have more time for questions at this point.


The Chair: I would then call on Simcoe Legal Services Clinic. Welcome to the committee. If you would identify yourself and then please go ahead.

Mr Ian Cameron: My name is Ian Cameron. I am the staff lawyer at Simcoe Legal Services Clinic in Orillia.

I have prepared some submissions which have a green cover. You may have received copies, and I'm here today to talk primarily on the issue of compensation as opposed to some of the other issues that have just recently been discussed before you today.

I should point out an error in the numbering. If you turn to the table of contents -- it's the second page in -- the conclusion that I'm asking for is amendment of subsection 85.7(1) rather than (4), for those of you who may have already spotted that error, and again on page 9 the same error appears in the heading; it should be (1) rather than (4).

Let me say that my experience in relation to all this comes from doing a lot of criminal injuries compensation for victims of crime. As a result of that sort of work, I became involved in the consultation process that's recently been ongoing about Bill 100, because it does contain provisions for compensating victims of crime. I say that because, as you no doubt have already heard exhaustively about the definition of "sexual abuse of a patient," there are a lot of things described in that definition which are crimes.

The next proposition I wanted to put to you is that if they are crimes, then there is considerable overlap between what's compensable by the Criminal Injuries Compensation Board and what's compensable under this legislation. In fact, in many cases with respect to sexual touching or sexual intercourse between the doctor -- I'll choose to say the word "doctor" -- and the patient, they would have the option of going to the Criminal Injuries Compensation Board to seek compensation for that event. As an encounter which takes place where there's a power imbalance, where's there a breach of trust, I can live quite easily with that as an application to the Criminal Injuries Compensation Board.


Therefore, I come to this committee to contribute the observation that there is considerable overlap between the compensation eligibility under the Compensation for Victims of Crime Act and that which is available under this enactment.

Once you make that key observation, then it's quite evident to me as a practitioner who's going to have victims coming into his office that I'm going to recommend that they go to the Criminal Injuries Compensation Board rather than to go to the college. The differences between what's available, the task that it represents for the victim, everything, suggests that as a source of compensation, this process is useless.

In my paper I've examined subsection 85.7(4), which describes the compensation process, and I invite you to share with me my conclusion, which is that probably one person out of 10 will actually make it all the way through to the compensation order you're talking about in this legislation. One in 10 would be generous. Ms Brown was up here just a few minutes ago talking about one person's case going forward and another seven not going forward and a further 19 known of but nothing done with them. That comes out to less than one in 10 when I do the math. So what I'm saying here is that the compensation issue is a tempest in a teapot. It's going to affect such a small minority of individuals that unless you change that, it's not even worth your while to consider what else is wrong with the way in which the compensation scheme is set up.

The reason behind it is simple. Although there's provision in the act to provide for an alternate means to assess eligibility for compensation, it depends for its existence on the college in question making a regulation. They don't have to do that if they don't want to. So it should come to you immediately, in my submission, that they're not going to. If they don't, then the only cases that are going to be compensated are those which pass through the entire discipline committee process right to the very end -- and that includes those which are plea-bargained away -- and the final submissions at the end of the day. That's the key argument that I'm presenting here and that I've documented.

Then I've gone on to compare the difference between what's available in terms of compensation to victims under this legislation and what is available under the Compensation for Victims of Crime Act. I've set out in here the distinction with respect to procedure, with respect to evidence, with respect to burden of proof and with respect to the powers that victims have with the process at the Criminal Injuries Compensation Board as opposed to what's available to victims under this legislation. The Criminal Injuries Compensation Board wins hands down, straight across the board.

For instance, just on the quantum of compensation, we've been told $10,000 is probably what we're looking at to purchase from third parties some therapy or counselling. Now, the Criminal Injuries Compensation Board, in the case of people who suffer multiple sexual assault, typically awards two years' therapy. That alone duplicates or exceeds the value of what's available under this legislation, and that's before you begin the assessment of pain and suffering. So the pain and suffering is on top of that. I would say again, with multiple sexual assaults or multiple offenders, you're looking at in excess of $10,000. Even a very simple approach to the board will produce probably $10,000 in pain and suffering. That's clearly superior to what you're suggesting should be given to victims under this legislation. If they're interested in compensation, they're simply not going to pursue this route, with all of its tortuous twists and turns, when they can go to the Criminal Injuries Compensation Board and obtain the same remedy probably without a hearing, probably on the basis of documents alone.

In my office 90% of the cases we handle from the Criminal Injuries Compensation Board result in a finding of pain and suffering in excess of $10,000, with the two years' counselling on top of that without a hearing, on the basis of documents alone.

Once you hear that, you've got to know that, trying to compare this process with that, your objective is to get resources for people so that they can overcome the impact of victimization and get on with their lives, if that's what your goal is, you're clearly not going to go through this process, not unless you've got extra energy left over after you've used the Criminal Injuries Compensation process.

The focus, if I can call your attention briefly to page 9 of my submissions, sets out there what it is that I would ask you to do, and it involves an amendment of a particular section that simply requires the college to prescribe this alternate procedure. That's all I'm asking for, because if you don't do that, you might as well not even bother dealing with the other very important issues that I'm sure have already been raised for you today about the compensation process, because it's only going to affect a very small number of people.

What I'm asking there is to require the college to prescribe the alternative requirements for assessing eligibility. It has given them power to do it, but you haven't given them any obligation whatsoever. In my submission, they're going to be looking for a way to avoid those expenses, and they can do so simply by failing to pass a regulation.

There's some precedent material in the paper which talks about a similar situation arising in the unemployment insurance legislation where that exact circumstance occurred, so there's legal authority for the proposition that I'm advancing with respect to that issue.

I've summarized at page 3 of my submissions a list of the various dead ends and blind alleys that you can end up in as a result of this discipline process that lead to something other than a finding by a discipline committee. I make this point, a finding by an executive committee, a finding by a fitness to practice committee, a finding by a complaints committee, there could be all kinds of process at the college that doesn't have anything to do with a final finding by a discipline committee. It's only at the end result of that process that you're going to see compensation paid.

You have a winnowing of cases, you have a reduction from 19 down to one. The other 18 are getting nothing and the other 18 are going to be going to the Criminal Injuries Compensation Board instead. Their funding will therefore be paid by the Legislature, so what you're doing is you're being generous, in my submission, with the money that you have charge of here in the Legislature, because the other people whose complaints are developed but which are not pursued through the discipline committee will be able to take the development of that complaint across the street to the Criminal Injuries Compensation Board and basically redeem it for cash. That's what's going to happen in this case.

I think I can speak strongly -- I am speaking strongly and I appreciate that -- in my office. I think we close approximately 50 to 60 Criminal Injuries Compensation files a year, and we're very frequently successful. Very rarely is a Criminal Injuries Compensation application unsuccessful. Currently, if you look at their statistics, and again you'll find them in the package, well over 90% of the people who apply to the Criminal Injuries Compensation Board are successful. Can this discipline process boast that kind of success rate? I don't think so.

I think you're going to have a difficult time competing with the Criminal Injuries Compensation Board for business as it stands, but in particular, if you give the college the right not to provide another means to compensate these people, then it's all over. There's no competition at all, and the money's going to be spent by the public; it's not going to come out of the professionals' pockets. That's the one message I want to leave with you today. It's much more important than all the rest of this stuff, because when we're talking about these people as disabled people, these people have been disabled by these experiences and they need this compensation.

That's what I came here to say. I'm quite happy to hear any questions.

The Chair: As the Chair, I regret very much that we have some real problems and I appreciate the brief that you've left with us, but we're going to have to move on and I'm going to have to explain to members of the committee that we are running into some time problems. Some witnesses have agreed to come after the break but, regrettably, there are other things that are going to be happening in this building which are going to take away the television and other parts of this. I want to make sure that other witnesses have --

Mr Cameron: I quite agree. That's why I spoke fast. If there are any questions people have, I'd be quite happy to hear them. You could call me.

The Chair: I am in the hands of the committee, as always, but I am in a very difficult time bind and I regret that very much. Thank you for your submission.



The Chair: If I could call on the representatives from the Transitional Council for the College of Respiratory Therapists of Ontario, I just note for those who have a schedule that Miss Robyn Johnson will be appearing later. We have two more submissions, the one from the respiratory therapists and then the Ontario College of Family Physicians. That will end our first part and then we will continue with the other witnesses.

Please go ahead and introduce yourselves.

Ms Margaret Carter: My name is Margaret Carter and I'm the vice-chair of the Transitional Council for the College of Respiratory Therapists, and this is Linda Bohnen, who is our legal adviser.

The mandate of the College of Respiratory Therapists of Ontario is to regulate the profession of respiratory therapy in the public interest. In fulfilling this mandate, the Transitional Council for the College of Respiratory Therapists must meet the requirements of Bill 43, Bill 64, and now that mandate also includes administering Bill 100. It is with respect to Bill 100 that we make this submission. Our concerns are based on our knowledge of the college membership and the role that our members will play in the health care field.

First, a little information about the profession. Respiratory therapy is a relatively new health profession. In Canada the profession is approximately 30 years old. The beginning was as individuals responsible for oxygen tank delivery. Through the years, the profession has expanded to where it is today, active in the care of patients ranging in age from premature newborn babies to the elderly. Today respiratory therapists may be found monitoring and maintaining life support equipment; responding to emergencies like heart attacks, respiratory arrests and traumas; assisting patients with diseases like emphysema, cystic fibrosis, asthma, chronic bronchitis and pneumonia; helping patients with ALS and polio remain at home enjoying a quality life; providing diagnostic testing including lung function, cardiorespiratory function, sleep studies and stress testing; assisting in the operating room to ensure that the equipment is maintained and the patient is safe; and assisting in the newborn nursery to ensure that premature infants with immature lungs have the best chance for a normal, healthy life.

Contact with clients or patients takes place in a variety of settings: acute care hospitals, outpatient clinics, diagnostic laboratories, rehabilitation hospitals, long-term care facilities and in the home. Contact may also be short term as in acute or emergency care, or it may be long term as in rehabilitation and home care. It is important for our discussion to realize that respiratory therapists are often alone with a patient or client in unsupervised, one-on-one practice. This is particularly true with the increasing trend to community-based care.

Respiratory therapists number approximately 1,100 in Ontario, with about 35% male and 65% female. The average Canadian salary, according to Statistics Canada, is approximately $38,000.

The transitional council has zero tolerance for the abuse of patients. Because its intent is the same, the transitional council supports Bill 100 in principle. We do, however, have some concerns about the bill.

Our major concerns are related to the workability of the bill. These concerns are based on the experience of current regulatory bodies, independent legal counsel and our knowledge of the profession. We support the position presented by the coalition of colleges that has been tabled before this committee. We would like to take this opportunity to expand upon some of the issues that we see will impact on our small college. We have outlined our position in the submission but do not wish to waste time in reviewing all of our points. I will focus on those issues that are of particular concern to our college.

First and foremost, we want a law that enables successful prosecution that withstands appeal to the courts. We want a law that successfully deters and, with education and social change, eliminates the abuse of patients or clients. To this end, the transitional council and the college are committed to an educational process that increases the awareness and sensitivity of the membership to the issues of patient abuse.

The college intends to provide guidelines for professional conduct with patients or clients. These guidelines will need to address such issues as when a patient is a patient and when they cease to be a patient, and when is a relationship with a former patient consensual and when is that patient or client vulnerable such that the possibility of a consensual relationship is negated.

Education of the members and of the public may also reduce the potential financial impact on the health care system of respiratory therapists who feel safe from accusation of abuse only when they are paired with another health care provider.

Of particular concern to us are the following:

Period of public access to sexual abuse finding: To protect the public of Ontario, the transitional council feels and believes very strongly that there should be lifetime access to the record with respect to findings of sexual abuse.

Non-party participation: The transitional council does not want the bill to be changed with respect to non-party participation. Discretion to allow or not allow non-party participation must remain with the discipline committee.

The transitional council is committed to establishing a complaints process that is as user-friendly as economically feasible. After surveying current practice and using information from the meetings with survivors, the transitional council will make every effort to make the complaints process as participative and supportive as possible without compromising the possibility of an effective prosecution. We do not want to risk losing any case on appeal.

The transitional council also supports an appeal provision that provides for appeal on points of law only. It is very important that the peer review process not be undermined by a legal system that is not aware of the finer points and expectations of the profession.

To confer automatic non-party participation circumvents the process of self-regulation that is conferred by the RHPA, self-regulation means that the profession regulates itself. Built into RHPA is public representation that is reflected across the membership of the council, committees and panels. When the college disciplines or regulates a member, this is self-regulation. When a third party prosecutes the member at the same time, self-regulation ceases.

The transitional council also supports the use of victim impact statements once a determination of guilt has been made. It is very important that these statements not be filed with the committee before it has made its finding.

Our last point is funding. The transitional council finds that there is an inherent and fundamental conflict for the college to administer a fund that is initiated by a finding of guilt by a panel of the college. The transitional council feels that it is the same as being judge, jury and money holder. The perception will always be possible that a decision of any disciplinary panel may be suspect in that the public may perceive a protection of their own if a decision is in favour of the practitioner, and the membership of the college may perceive that every decision in favour of the college is because the members of the panel are concerned that they may be accused of conflict. It is our belief that the perception of a conflict is as dangerous and damaging as an actual conflict. This issue may increase the risk of appeal of decisions, thereby increasing the cost and perhaps subjecting the survivor to unnecessary additional trauma.

Administering a fund for treatment is not the function of a college. Additionally, even with the limit of approximately $10,000, it is possible with the size of this college that one case of multiple abuse may bankrupt this college and either put an onerous burden on the members or cause the college to cease to exist. We can't be convinced that this is in the best interest of the public of Ontario. The public of Ontario is best served by a college that is determined and successful in removing perpetrators from the profession.

The transitional council could support a funding mechanism that is at arm's length from the profession, where funding is for treatment only and where there is accountability for non-regulated health professionals if they are to provide treatment at the wish of the survivor.

On behalf of the transitional council, I would like to take this opportunity to thank you for allowing us to make this presentation outlining our position of zero tolerance for patient abuse and our concerns about some components of Bill 100.

The Chair: Thank you very much. Again, I regret our time problem. I'm afraid we're going to have to move on, but I appreciate you coming before the committee today.



The Chair: If I could then call on our final representative, from the Ontario College of Family Physicians.

Dr Marlene Spruyt: The other person will be here momentarily.

The Chair: She's coming after the break. Miss Johnson has agreed to come after the break. Our problem, and I regret, is that we are going to lose our ability to transcribe and to have the proceedings carried, and that's why I've asked witnesses who can appear after the break, just so we make sure we give them their full time.

Ms Cheryl Katz: Sorry. It's just that our note said it was 15 minutes.

The Chair: Welcome to the committee. We've had to make a change just to make sure we can cover everyone.

Ms Haeck: Just a quick clarification: You're mentioning that we will be losing the ability to transcribe?

The Chair: As soon as we're finished with this witness.

Ms Haeck: We'll be having a recess, and for some reason there will be no ability after that?

The Chair: There will be when we come back. It's just during the period from 6 to 7 because of the ceremonies that are going on in the main hall.

Ms Haeck: All right, but we're not meeting in here anyway.

The Chair: Not till later, when all of this will be back.

Ms Haeck: Okay. So it's not a matter that the people this evening will not be on Hansard.

The Chair: No, it's simply that during this break there is the ceremony of the lights, and I'm afraid it's just trying to get all the technology together.

Ms Haeck: I just wanted to make sure my understanding of it was clear.

The Chair: Everyone will be seen and heard who is on the list, including Miss Johnson.

Ms Haeck: Very good. Thank you.

The Chair: Welcome to the committee. If you would be good enough to introduce yourselves, go ahead.

Ms Katz: Thank you very much. Good evening. I'm Cheryl Katz. I'm the executive director of the Ontario College of Family Physicians. With me is Dr Marlene Spruyt, who's the president-elect of the Ontario College of Family Physicians.

I have had the opportunity of perusing some of the submissions that have been presented before you, and I'm impressed by the scope of coverage, that these submissions have taken the time to evaluate Bill 100 to the extent that they have. Rather than come before you and re-present on issues that in quieter moments you probably admit you've heard ad nauseam, what we would like to do is touch on some of the issues that we feel impact on the implementation of this bill.

The other thing that struck us when we were reading through these submissions is, rather than the discord between them, we were struck by the cohesion of the submissions. What we felt was that there's tremendous support for Bill 100 and tremendous cohesion around the issue of the purpose of the bill and the philosophy of the bill of zero tolerance.

It occurs to us that the difficulty we're faced with now is not in terms of this legislation, the philosophy of this legislation, but rather in terms of striking a balance between the varying interests that represent the mechanism for implementing this bill.

What the Ontario college has done in addressing some of these issues is attempted to find a reasonable logical balance that might achieve the philosophies that the bill represents. We recognize that some of these issues dealing with mandatory reporting, the definition of "sexual abuse," are all going to be decided by a particular group, depending on where its interest lies. It was the Ontario college's feeling that the difficulty was in determining the balance between often competing interests.

I hope as well that I've just demonstrated the importance of a preamble.

The Ontario college is a voluntary, not-for-profit organization. Our membership consists of over 5,000 Ontario family physicians. Approximately 37% of our membership are female practitioners. We are a provincial chapter of a national organization whose mandate is to promote high standards of medical care and education in family practice.

The Ontario college supports this bill. We believe that any measures that are aimed at addressing and redressing sexual abuse of patients by health professionals who are in fiduciary relationships with their patients is a step in the right direction and certainly long overdue.

The rights of survivors have been historically unheeded and we sincerely endorse measures that will remedy this injustice. However, we believe that overzealous drafting of this legislation will have the effect of swinging the pendulum to the other extreme. We have heard from our members that the fear of Bill 100 and its implications has already compromised women's health care. We also have a concern that by swinging the pendulum in the other direction to the other extreme it will only prolong the suffering of victims and survivors of sexual abuse who've been victimized by their abusers and who may well be revictimized by encumbered administrative and quasi-judicial processes and by legislation which becomes entangled in lengthy constitutional debate in appellate tribunals.

We recognize that the challenge in drafting this legislation is to achieve a balance between often conflicting interests. The balance of my comments will be aimed at suggesting where that balance might lie.

In terms of the definition of sexual abuse, we're concerned that a broad definition such as includes inappropriate or demeaning remarks and behaviour, also known as sexual harassment, is a different category of offence from sexual abuse. It's our opinion that, with respect to sexual harassment, after-the-fact disciplinary processes are inferior to proactive education and sensitization programs which we believe, in the long run, will more readily achieve the goal of zero tolerance and minimize the risk to others at a fraction of the cost.

In fact I was struck by an editorial in the Toronto Star, November 27, discussing the Walter Hryciuk inquiry. The comment at the end of that editorial was that warnings, suspensions and education would be a most welcome addition to the current system that requires a judge to be removed for misconduct.

It is with respect to education that the Ontario college feels there ought to be a greater emphasis, and that by including sexual harassment in the definition of sexual abuse and turning the matter over to a disciplinary process, you will be missing the opportunity to address and perhaps re-educate individuals who may not necessarily have the intent to abuse victims.

We also believe that a broad definition would encumber administrative structures such that the bureaucratic machinery would not be in a position to address and successfully adjudicate the more serious reports and complaints dealing with sexual abuse. One need not look beyond the experience of the Ontario Human Rights Commission itself as an example of how bureaucratic machinery, albeit well intentioned, can become or has become bogged down in the less difficult, the less severe, issues of discrimination.

We would hate for that to happen because it seems that everybody here agrees that Bill 100 intends to redress difficult areas that have not been touched on and that need to be redressed. We don't want this position to be construed as negating the impropriety of sexual harassment. We just feel that this legislation is not the place to do it, that in fact regulated health professions still have the avenue of unprofessional conduct and that is open to discipline for anybody who is conducting themselves in an unprofessional way, and that would include sexual harassment.

With respect to mandatory reporting, once again, we felt that if there was a possibility to come to some kind of grip with a balance between conflicting interest, that balance would better achieve the goals of zero tolerance. In respect to this section, we understand mandatory reporting to mean a report of sexual abuse filed by a member of a regulated health profession against another member and a complaint to be report of sexual abuse filed by a patient.

The Ontario College of Family Physicians supports mandatory reporting. Physicians are not strangers to the requirement to mandatorily report: They do so under the Highway Traffic Act in the issues of fitness to drive; they do so in respect of child welfare legislation. Mandatory reporting is no stranger to physicians.


The problem that the Ontario College of Family Physicians sees with respect to this provision in Bill 100 is that, while there may be an opportunity to then perceive a pattern of behaviour with respect to any given individual, it doesn't necessarily promote the goal of zero tolerance to have a document sitting on a file somewhere in a disciplinary body and not to be acted on until perhaps some time later something happens to trigger it. We feel that this is an opportunity, it's an invitation, for the abuse to go on. If there is a way of addressing -- and I'll be touching on this in a moment -- and stopping the abuse, then it should be acted on immediately.

The balance that we feel is important to strike is based on natural justice requirements. It was felt that at the very least, the fact of a receipt of a victim-initiated complaint or of a mandatory report must be disclosed to a health professional against whom it is made, together with sufficient detail to enable the accused professional to address the allegation and respond to it.

We recognize that there may be victims who are unable to deal with the process if their names are disclosed to health professionals. We struggled with this and felt that a fair balance might be reached in respect of this class of victims if there is a discretionary provision introduced into Bill 100 that would enable the disciplinary body, having been advised by the reporting health care professional, to withhold the name of the victim on the condition that there is sufficient other detail that would enable the health professional to still make a full answer.

We also strongly believe that there must be a mechanism developed within the legislation to enable psychotherapists and psychiatrists to be exempt from mandatory reporting. To do otherwise might result in those providers of health care who recognize that they do have a very serious problem not to seek treatment. Once again, the need for this exemption recognizes the painful dilemma with which one is faced in attempting to balance compelling but none the less competing interests. The philosophy of zero tolerance tips the scales in favour of the need for this exemption.

With respect to intervenor status, it's the position of the Ontario college, which does not support discretionary intervenor status, that by introducing intervenors you may indeed have the effect of obfuscating and diffusing the issue, prolonging the proceeding and delaying appropriate and just decision-making. We don't feel that this is in anyone's best interests, least of all the victim's.

The question of the victim's character in respect of a sexual abuse complaint, in our respectful submission, is irrelevant to the determination of whether a health care professional's conduct was sexually abusive. It is our position that the issue of character is irrelevant and it should simply be ruled inadmissible. It's unfortunate the criminal courts haven't followed that procedure as well. It is irrelevant what the victim has done in his or her past to the determination of whether or not an act or omission of a professional is abusive.

With respect to funding for counselling or therapy, we don't support the idea that each regulatory body should set its own fund. We are of the opinion that a generally administered compensation fund similar to the Criminal Injuries Compensation Board's would be a more equitable fund. We feel that a generally administered fund would have the advantage of allowing for standardized guidelines to be developed with respect to the disbursement and accountability for funds, and we feel that it would lend itself to established criteria and not depend on the financial status of each profession.

We believe that sources of funding should include fines levied on perpetrators, and we believe that the issue of entitlement, if any, to funding for counselling or therapy should be determined by the disciplinary tribunal which is already in possession of the relevant details and facts to avoid duplicitous proceedings.

We support the use of victim impact statements in determining funding entitlement. We don't believe that victim impact statements are relevant at all in determining the issue, which is a narrow issue, of whether or not an abuse has actually occurred. We had a number of questions with respect to the funding for counselling or therapy.

Bill 100 provides for funding to be provided, but it is unclear under this mechanism how the program would be funded, how the success of therapy and counselling would be monitored, whether there would be any ceilings to the amount of funding a victim is entitled to receive or whether the funding is to be paid directly to the victim or to the therapist/counsellor.

Bill 100 provides that a victim's eligibility for funding is not affected by an appeal of the panel's finding. That is, funding for therapy would continue notwithstanding that a finding of sexual abuse made at a disciplinary hearing was being appealed. In the event that the appeal was ultimately successful, it is unclear from Bill 100 who bears the cost of continuing therapy, if there was a mechanism of the recovery of the funding paid out for the therapy or counselling where the finding on appeal does not support the allegation of sexual abuse, and from whom is funding recovered.

Bill 100 provides that funding will be reduced by any amounts required to be paid by OHIP or private insurer. We wondered what the mechanism for this would be. We wondered how this could be reconciled with confidentiality requirements under the Ontario health insurance plan and indeed with the victim's own private, contractive insurance.

Bill 100 provides that a college which provides funding for therapy or counselling has a subrogated right of action against the perpetrator. That is, the college would elect to exercise its subrogated right of action and in essence steps into the shoes of the victim as if it were bringing the civil action instead of the victim. The victim's right to recover damages in a civil proceeding would thereby be extinguished unless the college itself elects to limit its action to the amount of funding that is provided. We had difficulty understanding how this provision, as currently drafted, would assist victims and we felt in reading it that it fundamentally disempowered victims and would compromise healing.

We believe that the vast number of health professionals desire to provide their patients with health and wellness care and appropriate treatments. We believe that resources must be allocated to the development and enhancement of education and sensitization programs.

If I could just spend a moment on this, the college had a difficult time reconciling the goal of zero tolerance with the mechanism in the legislation that would allow third-party or mandatory reports to be received by the college and kept on file. It is felt that this was not an appropriate mechanism for addressing abusers immediately upon that information being communicated to a college.

It was felt that a fair balance would be that, once a complaint of patient sexual abuse is received and information is passed on to the alleged violator, at that point a decision can be made whether it would be appropriate to refer the matter to an education program or a sensitization program rather than having it sit in the file, because we felt that this lent itself to further abuse.

We believe that there must be a sensitive and professionally administered parallel process providing an alternative to discipline which may be appropriate to be triggered at any stage, either before or after a complaint or report of sexual abuse or demeaning remarks or behaviour is received. We believe that this approach will more readily achieve the goal of zero tolerance and will minimize the risk to others at a fraction of the cost.

We felt that the gearing-up of the investigative and litigation machinery as a first recourse may be costly and unnecessary and we felt that it may be of more benefit to lawyers than to anyone else, least of all victims and survivors of unprofessional criminal behaviour.

I'd be pleased to answer any questions.

The Chair: Thank you very much and I regret again that I'm afraid we're within two minutes of losing our feed here, so I'm going to have to call these closings to a hold.

I say to the committee just before adjourning that we will be meeting in closed session with two witnesses who asked to meet with us in closed session beginning at 7 pm and at 7:30 we will be back here in this room to begin our hearings for this evening. Thank you again. The committee stands adjourned until 7 o`clock.

The committee recessed at 1810.

The committee resumed at 1900 in closed session in committee room 2.

The committee resumed at 2000 in room 151.

The Chair: The standing committee is back in session and we are hearing representations on Bill 100, An Act to amend the Regulated Health Professions Act, 1991.


The Chair: Our first witness this evening will be Robyn Johnson, if she would be good enough to come forward. I might just thank you again, Robyn, for helping us out with the time.

Just as you sit down and make yourself comfortable, for members of the committee, you've received two copies of the summary record of the testimony, and our researchers are going to provide today's tomorrow, as soon as they can have it. It may be a little rough, but I think it will still be of great help to us.

Welcome to the committee.

Ms Robyn Johnson: Thank you. My name's Robyn Johnson and I am a survivor. From the time of a few days old, John Minich Sr became our whole family's physician. He started my abuse with comments on how nicely I was filling out and how I grew over the summer. He was grooming me with flattery, sexual comments etc. Minich abused me from the age of 12 to the age of 17. It is difficult to explain to people who have not been a victim of sexual abuse, to express the damage and scars that are there for ever.

I look back, and 24 years ago I was carefree, trusting and open, not a care in the world, like any other 12-year-old. At age 17, his abuse became so horrific and blatant that I changed. I isolated myself. I did not trust. I felt ugly, dirty and kept asking myself, what did I do to deserve this? Unfortunately, I was in my last term of grade 12 and could not concentrate in class. I would break down crying. I spaced out a lot. Your body's there, but your mind is nowhere.

Until the abuse, I had applied to two colleges and I was accepted. Up until the abuse, I was doing well. The abuse made it so that I could not cope and I started skipping classes, wandering aimlessly, because of my lack of coping and being there in body only. I ended up two credits short of graduating from my class, with many questions, knowing I was a very good student.

My school counsellor must have called me in four times before I finally told him what happened. He knew it was something major because it went totally against my character. He told me to tell my parents, which I did, and never to go back to Minich, and he even offered me the name of a female doctor. I later found out that I was not the only one to tell the counsellor. He knew of a few more. I met them all in court.

After my experience with Minich, I went twice to a doctor in four years, at the expense of my own health. I never went to another doctor until I was pregnant and I had to. I have always avoided medical care unless it's absolutely necessary. Even though I trust my doctor now, who delivered my babies and has been very good with me, I have had one Pap smear in 12 years, only because I thought my symptoms warranted something really wrong.

Today, I suffer from severe panic attacks, agoraphobia, family problems, lack of family support because they don't understand flashbacks, the nightmares, the depression and no intimacy. I have increased migraines and general pain, knowing someone I trusted completely hurt me and harmed me knowingly. I am only now in therapy and starting to deal with everything he did to me. I coped by blocking out a lot.

Victims do not want to be victims. They want to be survivors. I am only one of 28 women who criminally charged him and had the courage to come forward, but there are hundreds who could not come forward for different reasons, and I understand that. This doctor for 30 years, until he got caught, was abusing. His licence was revoked for one year. He received six years' jail term. He can now be paroled in one sixth of his time, and he plans to in January. This is what we call justice.

I do not want this to ever happen to anyone again. This bill has to be clear, concise and have no loopholes for the perpetrator to slip through. I will only speak to you about the issues of education and funding.

On funding: I agree that it should be a choice of therapist, but funding should also include other areas. When I was abused, I received no help anywhere. When my abuser was charged with 28 counts of sexual abuse in June 1991, there was no choice of funding available. I went to the rape crisis hotline, then eventually I had one-to-one counselling for two months with them.

Over one year later, because we were a unique group by having the same abuser, four survivors got into a support group for a 12-week session provided by the assault centre. After this, it was clear that three months of a couple of hours of therapy a week did not nearly begin to scratch the surface of the pain, the violation of my body, the breach of trust or how to deal with flashbacks or the fallout that happens in a family with someone dealing with abuse.

Unfortunately, the assault centre has had major cutbacks and does not provide these services any longer. My only choice, as a single-income household, was to stick my neck back on the chopping block and go to a doctor who was covered under OHIP.

I went to my first therapist for a year. She did more harm than good. I was ready to give up. I was depressed and totally despondent. I could not afford $75 an hour and up for a therapist who dealt with sexual abuse who was not under OHIP, nor could I find a female psychiatrist without a huge waiting list or who is accepting new patients.

I am now in therapy with a male psychiatrist, which makes it difficult at times to go into any depth of my abuse. He is helping, but it was out of desperation and good recommendations that I took a chance with a male. He is good, and I never would have dreamed two years ago of a male doctor, so I've made some progress.

I feel the college takes too long to have these disciplinary hearings. In the meantime, the abuser is still practising. In my case, the abuser was restricted on conditions of bail not to see female patients without a nurse present. He disregarded this. He had a secretary present sometimes. With this breach of bail, he was then restricted to seeing male patients only. The college had so many complaints on this doctor, but it chose to wait until the doctor entered a guilty plea on 28 counts in criminal court before it held the disciplinary hearing.

I feel funding should be made available immediately when a complaint is filed. One to two years down the road is far too long for an abused patient to wait for therapy. I also think funding should not be exclusive to a therapist or a counsellor outside of OHIP. There's no time frame in which to heal. One hundred hours or $10,000 is unrealistic. Again, education is needed here. Funding should be available for any specialist in the field of sexual abuse and related issues, for small groups or large groups to be able to have speakers on post-traumatic stress syndrome, self-esteem workshops, self-assertiveness courses, family counselling, workshops for partners or loved ones who are suffering living with the abused, self-defence classes etc. I was robbed of my education. To go back would be very therapeutic. This is not compensation; this is therapy which you cannot get all in one place.

I also feel that these should be offered as soon as a complaint is filed. Don't leave the victim dangling, trying to find these places of help on her own. Many times a victim is totally immobilized and does not know where to turn for help. This should be part of the education process, for the colleges to get this information and be able to direct the victim and advise them of what's out there.


Every professional found guilty of impropriety or abuse should pay a heavy fine so funds are available. My abuser had his licence revoked for one year, no fine.

In conclusion on funding, I feel the colleges should give the funding to the patient. It takes years of therapy to heal from abuse and to regain self-esteem. A patient may decide to attend a few workshops or take a self-assertiveness course as well as therapy.

Finally, this is not compensation for pain and suffering. If a person chooses to sue civilly or go to victims' compensation, that's for pain and suffering, and the college should pay. They licensed the perpetrator; they're responsible for policing them.

Funding is a must for victims. Other than that, the college is nothing more than a paper factory, putting its signature on certificates. Zero tolerance means weeding out the bad, punishing the abuser and helping the victim. Someone has to take a stand and say, "What can we do to help you through this?" and do everything humanly possible to help. It would be nice if we could adopt some of the Jesuit fathers' recommendations on disciplinary hearings with the helping of victims.

In conclusion on funding, it would be nice if we, the survivors, did not have to revictimize ourselves by going to civil court or victims' compensation. In my brief, I have the Jesuit fathers, the way they handled discipline, okay?

Now I'd like to go on to education. Every governing body that exists under current legislation has developed a sexual abuse prevention plan, which is a very positive step. The easiest place is at the grass roots. It must be part of the curriculum for anybody going into the health care profession; not just a mere mention of the oath, but a program of what sexual abuse is and the effects the abuse has on the victim and the family, which can only be described by a survivor of sexual abuse, by a health care professional. They need to go into post-traumatic stress syndrome -- really focus upon this; this could be a complete subject unto itself -- ramifications to the professional and what are appropriate questions and behaviour and what are not.

Professionals already in practice must take a course as a continuing education plan within a two-year period, mandatory, not an option; also, if told of abuse, how to handle it. In my experience, I had terrible things said to me when I had to explain why I was on certain medication. I had a doctor say: "Hey, he's a nice guy. I golf with him. He wouldn't do that." I had a technician giving me a test. She asked questions about my medications, and when I told her, her response was: "Why would he bother with patients or young girls when he could have anybody he wanted? He's a real ladies' man." I found this demeaning, and it made me feel like I wasn't believed.

Also, after the doctor pled guilty in criminal court, there were 10 doctors who had letters of recommendation stand in evidence as to his character and competency. They had a chance to pull these letters and they did not. This only reinforces the fear of the old boys' network staying together. This is why education is needed around how to listen and not to judge when the victim has the courage to disclose their abuse.

Staff education: Receiving or investigating allegations of abuse is extremely important. This can make the difference of a frightened victim going forward with a complaint and charges or being scared off by the treatment they receive from that very first phone call. The disciplinary hearing too can scare them off.

Again, I feel the survivor could be a useful person to have on the team. The survivor, as part of the team, can console and reach out to the victim who feels at the time that they're the only one out there who has ever gone up against the powerful body of any of the colleges. Also, a survivor can sometimes explain the process repeatedly, if necessary, because many times the victim finds it hard to comprehend what is being said to them by the investigator. A survivor is also a great source of information, because they have been to the hearings, they've been to court and they've laid criminal charges. We've networked and we know what's out there for the victim, what support services -- and not many, believe me, not in Hamilton anyway.

We, as survivors, have had very little standing, from laying a complaint to being just a witness in criminal cases to being observers only in parole hearings. You have to give some of the power back to the survivors. The offender has all the rights. If you want victims to become survivors, then we, as survivors, should be part of the advisory committee, part of the educational process on all levels, as advocates and support for the victims going through any of the hearings or the things I mentioned above. If you want a sexual abuse plan that is going to work, you have to include survivors who have been there and know the system the best. After all, we are the experts on abuse. You could be wasting a wealth of information and help if you exclude us in the overall fight to prevent sexual abuse.

Public education: Some areas of sexual abuse are not taught in schools or at home, and this has to change. As an example, I was told when I started my period that my body was changing and that I had a woman's body which needed regular Pap tests to check for ovarian cancer, cysts, cervical cancer etc, which my grandmother was being treated for at the time.

It was a very good scare tactic, one that worked real well with me, but logically, he was making sense to a 12-year-old. I thought my friends, my mom, everyone, was having this done, so I didn't talk about the embarrassing procedure. By the way, it wasn't a Pap test at all. I was being sexually abused. I received it, and 20 and some odd years later, I realized when I went to a doctor who was not abusive that it wasn't a Pap test. I figured all this new fandangled equipment was something new, whereas it was not; it was standard.

Twenty years later, my daughter starts her period. I panic, thinking she will have to have a Pap test. I knew she would be mortified, just as I had been, but I was going to insist on being in the room with her just to talk and keep her calm. When I mentioned this to my doctor, he was shocked and he set me straight on when you receive a Pap test. With that revelation, I knew I was abused from an earlier age than I thought.

I phoned my daughter's school -- her school runs from grade 6 to 8 -- to see if anywhere in their curriculum they covered when to have a Pap test and what a Pap test is. She said no; they covered birth control, reproduction, VD, AIDS, but nothing about a Pap test. I was shocked. Nothing had changed in 20 years. I also look back and see the grooming process that took place, another area that the public needs educating on.

Sexual abuse and abuse should be taught at home and in the schools, not to let sexual comments go. I feel that a pamphlet could be in every health care professional's office, for example, a patients' bill of rights, and on the flip side, the doctor can have his expectations: If you miss an appointment, you pay; you're expected to be on time for appointments etc. Whatever he wants to put down, he can have his say on his side.

In conclusion, if the message you clearly want to send out to the public is zero tolerance, then revoking or suspending a licence for five years or putting conditions on an abuser who can still practice is ludicrous. Zero tolerance means revoked for life so that the oath of, "Thou shalt do no harm," is a guarantee. Have the backbone to do what you say. In my opinion, if a professional behaves like one, he will never have to worry about sexual abuse or sexual harassment. Sexual abuse is incompetence. It is showing poor judgement, and in my mind, there is no poorer judgement than abusing their patients.


A repeat offender with more than one charge should have their licence revoked for lifetime, not just in Ontario but in our country, Canada. Why give the abuser the chance to go to another province and just pick up where he left off? Many articles I've read tell of doctors who have had their licences revoked in Ontario and just move on to Quebec to prestigious hospitals and become head of psychiatry and continue to abuse their patients. This cannot go on.

Don't chase the offender out of your backyard into somebody else's, because they're going to repeat the abuse. If a professional leaves the country, goes to the USA, full disclosure of his conduct should be given, with a strong advisory that this person is a high-risk person, and in the interest of safety of the general public, this perpetrator is not suitable for any health care position.

A great fear of mine is that a doctor or any other health care professional can hang up his shingle as a counsellor or therapist, because they're not regulated. They can have their office with their certificate of graduation in whatever field, and reabuse the same way. Follow-up has to be maintained, however, somehow, if you truly back zero tolerance and protecting the public from future harm.

Possibly taking the courageous steps that Toronto recently took with a sexual abuser could be a precedent set for the college and police to let the public know that a sexual abuser, especially a repeat offender, is living in their community. This is truly protecting the people. The oath says, "Thou shalt do no harm," and if it is meant, zero tolerance is just what it means.

It will take a great effort on behalf of the colleges, memberships, public, education programs, institutions, professional associations, survivors, and most of all, government. This is what has to happen to be part of the solution.

Thank you for your attention and any consideration given to Bill 100 I have suggested. My speaking publicly to authority figures has been nerve-racking, but it has been a milestone in my therapy. I'd be happy to answer any questions.

The Chair: Thank you. We have a few questions.

Mrs Haslam: I just had one. I'd like to know your view on mandatory reporting. We are getting quite a number of different reports on that and I'd like to know whether you felt mandatory reporting by all professionals in the health care system should be part of this legislation.

Ms Robyn Johnson: Yes, I do. I think it covers it very well in that one paper I gave you on the Jesuit fathers on reporting. They can hide behind confession. If they report in confession, then it's no good.

I don't believe, when it comes to the health care profession, that you should be able to hide behind anything. I think mandatory reporting should be just that. If the patient is not willing to come forward with their name, because they're afraid to go one on one with the doctor, that's fine. Report the doctor, wait for a second or a third name and then that first person, I would bet you, would come forward; they would.

Mrs Haslam: I know other people have questions. I'll pass at this time.

The Chair: You can have a supplementary on that, if you want.

Mrs Haslam: No, my only other question was around the wording. There's been some discussion around words and behaviour, around reporting that also. I didn't know if you had an opinion on that also, versus touching. There's also a clause around reporting of the words and behaviour, not just --

Ms Robyn Johnson: To me, it's all sexual abuse. If you can understand it as a grooming process -- that's how it started with me: "My, you look nice. My, you're filling out nicely." It is a grooming process. If you've got a doctor who's doing that, believe me, down the road, it's going to go further. So yes, it's abuse. I don't think it should be defined as harassment, I don't think it should be defined as misconduct; it should be defined as sexual abuse.

Mrs Sullivan: You've left with us quite an impressive package here. You've put a lot of work into preparation for your appearance here. I notice that in one section you've done a draft of ideal components, from your point of view, of a sexual abuse plan for a college, and one of the items that you've included are guidelines for professional behaviour.

What we're told by different colleges is that each one has a different scope of practice and that members of one college may not particularly know what another college would be doing or would be allowed to do within its scope of practice, what's appropriate to do in clinical terms.

One of the things that you speak about here is the establishment of guidelines to delineate appropriate standards of behaviour within the patient-practitioner relationship. It struck me that if one was reporting within one's own college, with those kinds of guidelines available that had been established and distributed, one could be fairly sure that one's observations were appropriate. However, with respect to another college, it may be more difficult. I wonder if you'd have some comment on that.

Ms Robyn Johnson: Perhaps you could give me an example of, let's say, one of the colleges, something that you would think might not be appropriate.

Mrs Sullivan: I'll describe a problem that was put to me. A member of the physiotherapists, by example, in the course of fitting a device, an artificial leg, had to move the genitalia of a man. Someone else observing that may conclude that it was sexual touching, not necessary to the practice, because of the way it was done or whatever, and report what in fact was very much a part of that procedure and necessary to the proper fitting of an artificial leg, or the limb. Someone who was also a physiotherapist may well recognize that the method was quite appropriate and well within the bounds of the clinical practice.

Ms Robyn Johnson: I think it depends on the patient, what preceded the touching of the genitalia. If the patient was threatened and if the patient made a report to the college and the college deemed it appropriate, then that patient --

Mrs Sullivan: That's where the problem is. It's not the patient who's reporting; it's a third party who's doing the reporting, somebody from another profession.

Ms Robyn Johnson: That's why you have a disciplinary hearing. But I truly believe that when you've got different races, different religions, different people to whom some things may be offensive, you have to take that into consideration, because a male may feel very uncomfortable having his genitalia touched when he could have moved it himself and had the same procedure done. It's a matter of how you approach the patient, how the patient perceives it.

Like I say, it may go to the college and have no substance at all, but then again it may. It depends on what happened before, what was said. Every situation is different. I can't just judge on one example.

If I had a podiatrist looking at my feet and all of a sudden he started rubbing my leg and moving up my leg, I would know that's wrong. A podiatrist is supposed to be looking after my feet. But somebody else looking on may say, "Well, I'm checking the muscle structure, I'm checking the tendons that go into the feet." It could be perceived as perfectly normal, whereas to a patient it could be very sexual.


Mr Jim Wilson: Ms Johnson, thank you very much for showing us your courage and coming forward and telling us your story.

You mention on page 4 of the typed portion of your brief some of the services that you think should be offered; for example, family counselling, workshops for partners or loved ones who are suffering living with the abused. You say, "I also feel that these should be offered as soon as a complaint is filed."

My question is, under our system, whether it be in the college disciplinary system or our regular justice system, the problem with offering services to a victim early on in the process is that we do have the presumption of innocence until the alleged abuser is found guilty of that. So perhaps in answering my question, you could tell us a bit more about what your experience was with the college and why you feel these services should be up front.

Ms Robyn Johnson: By the time the disciplinary committee gets around to having the hearing, you can be looking at two years. Two years is too long to leave a victim dangling. So many times they're immobilized. They don't even know how to network, how to reach out and find other survivors. I feel that if you get them the counselling immediately, and then further down the road, in two years, if the doctor, let's say, is found innocent, then you can be looking at retribution. In the meantime, if you've got a real victim there, a victim can't wait two years.

I had to wait. I had to wait until the criminal courts -- he pled guilty before the college made any attempt at the hearing. The hearing could have been done much sooner. He was charged. He had 28 criminal counts. He had umpteen dozen complaints laid at the college, way more than 28. They had enough to move on, but they didn't. They waited for that guilty plea.

Fortunately, my disciplinary hearing was wham, bam, in, out, three minutes and that was it. He wasn't even there. His lawyer pled guilty, but that was two years down the road, and that's too long. In two years down the road you could have a victim commit suicide, have their family break up. I'm giving you extremes, but believe me, a victim doesn't know whether they're coming or going when this first happens. It's devastating. It takes over their life.

The Chair: Ms Johnson, thank you very much for coming before the committee and for your presentation, and also for the documents that you've left with us.


The Chair: If I could call our next witness, Miss Jean Halliwell. Miss Halliwell, welcome to the committee. Have a glass of water and please make yourself comfortable. When you're ready, go ahead.

Ms Jean Halliwell: You'll have to forgive me for the water. I've got laryngitis, so I'm going to talk very carefully, hoping you can hear me.

My name is Jean Halliwell and I'm from London, Ontario. I am a victim of sexual abuse, and although the abuse happened in the mid-1970s, I am still being victimized, not by the psychiatrist but by a system that thinks, as a woman, I don't matter. As an ex-psychiatric patient, my credibility is questionable.

If these sound like strong words, they are meant to be. If we as adults find it so hard to be heard and to be believed, how can we expect children who are abused to be treated fairly in this double-standard society?

Ladies and gentlemen, let me tell you a story.

A young family came to Canada from England in 1967 -- husband, wife and two children. The wife did not really want to come to Canada but she tried to make the best of it. After being in Canada a short while she developed a phobia, a phobia which in the next year or so threatened her peace of mind so severely that she decided she needed to see a psychiatrist to find out what was wrong with her. She knew she needed help. She received help, all right.

The psychiatrist eventually sent this lady to see another psychiatrist who specialized in biofeedback. From that time on she was under the sole care of the second psychiatrist. During this time the psychiatrist tried a new course of treatment: injections of Ritalin and sodium Amytal injected simultaneously in a vein in her arm. It was during one of these drug therapy sessions that the doctor told the patient he was going to try something new. It would help her and she was to trust him.

He proceeded to partially undress her and himself. At that point the patient noticed a cast on the doctor's leg going up almost to his groin. He had broken his leg a couple of weeks previously. He proceeded to have sexual intercourse with the patient.

The effect that these two drugs have on you is very strange. Your heart races, you feel euphoric and you are very aware of everything that is happening, but for some reason you have no way of exerting your own will. In this altered state your brain does not seem able to allow you to judge whether what is happening is right or wrong. In a drug-free situation she knew this kind of behaviour could not or would not have been allowed to happen without a fight.

For the next three to four months, on Tuesday and Thursday afternoons, the injections were given. Abuse occurred; sometimes intercourse; sometimes oral sex was demanded of the patient. The psychiatrist never touched the patient in a sexual manner, only when she was under the influence of these drugs.

The patient, on leaving his office after these episodes, immediately buried the information. During this period of the patient's life, because she was being forced to deal with issues and feelings that caused her a great deal of pain, she was in a vulnerable position, and this doctor, knowing this, took advantage of this situation -- which, the way she sees it, makes him a despicable human being and a criminal.

The patient told her husband about the abuse during the time of the abuse. The doctor's comments to the husband were: "She's emotional. She is sick. Some patients fantasize these things with their doctors." The doctor immediately reprimanded the patient, telling her he was trying to help her get well and how ungrateful she was and how it would be too bad if she ended up in the London Psychiatric Hospital and lost her children. The threat worked. She didn't talk about it again and for a short while the abuse continued. Over a period of the next three to four years the patient's medications were increased to a point that she hardly knew one day from another.

To cut a long story short, she finally got the courage to stop seeing the doctor, and by then the knowledge of the abuse had been buried so deep it was as if it had never happened, until a simple thing like a TV movie triggered the memories and it all came flooding back.

Her next step was to ask her family doctor for help. She told him about the abuse. He was sympathetic but was of no other help. A little later she talked with someone at the College of Physicians and Surgeons and was told that because the doctor was no longer practising in Ontario and because "you are only one complainant," the chances of doing an investigation were very slim.


On talking to the London police department, she was told the statute of limitations had gone by and "with you being only one," there isn't really much they could do. Her husband, her family doctor, the College of Physicians and Surgeons and the police department all felt she was not important enough to validate what happened to her.

What is my point? The point is, ladies and gentlemen, that as a victim I speak from experience of the pain that is inflicted on someone who has been abused by a health professional. I speak from experience why I think Bill 100 is useless unless you include mandatory reporting. Sexual abuse by anyone is an abuse of power and is wrong, but today we are dealing specifically with abuse by health professionals.

I am sure you are finding it hard to believe that I could be a victim. Today you would be right. In the 1970s, yes, I was scared. I was vulnerable. I was naïve. It is then that physicians who abuse take advantage of patients.

No one -- and I repeat, no one -- is immune from possible abuse. Whenever you or a member of your family walks into a doctor's office, you are troubled in some way. You may have symptoms of an illness. You may have lost a loved one. You may have marital problems. The stress in your life is causing too many headaches. Whatever the reason for your visit, you have been conditioned to trust your health care professionals. When we go into the sanctuary of a doctor's office, we can hope in our hearts and tell this person how we hurt. If we don't, then he cannot help us to heal.

At that point you become vulnerable. The balance of power shifts. If the doctor is one of those bad apples, he will then pry more information from you so that he can ascertain just which way he needs to go to satisfy his own urges.

Gentlemen, you needn't feel complacent. Yes, the chances of your being sexually assaulted by a male physician are remote, but I am sure there is someone in your life whom you care for deeply, maybe your wife, maybe your daughter, maybe your sister or your mother, maybe all of these, and if only for these people, you have to take mandatory reporting seriously.

The OMA is a lobbying group with a lot of influence. They represent a group of citizens who are well educated, their financial standards are one of the highest, and as a result can afford to have good legal advice telling them the best way to get government to listen to them so they can protect their interests. We, as victims, have none of these opportunities.

We come to you one at a time without benefit of legal counsel, just like a small ant trying to move a mountain. And as we are so small, too insignificant, we are usually ignored. But please take heed: We too can become a lobby group of enormous power; if not with money, with sheer numbers.

Our state-of-the-art medical care is in trouble, which means we are cutting services to cut costs. Sexual assault victims cost the taxpayers of Ontario millions of dollars a year. You see, the trauma of sexual assault, especially if the person is not able to deal with the abuse, will manifest itself in other ways. Your physical symptoms begin to emerge, starting a circle of visits to specialists, tests, procedures and even surgery, not just once, but over and over again, which, when multiplied, cause an enormous drain on our health care system. Plus the fact that doctors who abuse charge OHIP for the privilege of abusing their patients. The abuse usually occurs in the doctor's office and the secretary has made your visit a chargeable one.

We are either part of the solution or we are part of the problem. Mandatory reporting will mean you intend to be part of the solution. Leave that out of Bill 100 and you become part of the problem. You will send a clear message to our health care professionals that: "Government is on your side. If you happen to abuse your patients, so what? They're only women and children."

Physicians in Ontario fear mandatory reporting. I wonder why? Their excuse is it could become a witchhunt. This is a smokescreen. The loyalty doctors have for their colleagues is admirable, but it is misplaced. The loyalty should be with their patients. If a doctor has to make a choice of loyalty to a patient or one of his colleagues whom he respects for his talents, his choice is usually the doctor. There is always another patient. The colleague spent years perfecting his skills. Why would he jeopardize his livelihood? It cannot be possible.

The problem is that physicians who abuse are clever and calculating and gain the trust of their colleagues in such a way as to make it almost impossible to believe that they could do such a thing, whereas a doctor always sees a patient's weaknesses. He hardly ever sees them when they are strong and healthy, only when weak or ill. But behind closed doors, with no one else present, this fine, upstanding doctor can abuse knowing that of the two of them the public will believe him before they believe the patient. Why? If the public were to believe the victim, then they too have to look at their own vulnerability and recognize the fact that no one is immune behind those closed doors, and that is something not many people are willing to risk.

Doctors are human beings, with the same urges, weaknesses, strengths as the rest of us and subject to the same stresses. Male doctors are no different than the man in the street. They too can be turned on by the sight of a female, dressed or undressed, and if his private life is less than perfect or his stress level has reached gigantic proportions, his judgement can become just as impaired as the man in the street's. If he decides to cross the line because of his dissatisfaction, it will become a pattern that whenever he's under stress he acts out that stress with his patients.

Mandatory reporting will weed out some of these people -- not all. This is just a first step in addressing a problem that has to stop. Female doctors I have spoken with have no problem with mandatory reporting; only male doctors seem to be concerned. If you are ethical, caring and non-judgemental, no patient is going to jeopardize losing you as their doctor by laying false charges of sexual misconduct. This so-called witchhunt is a self-serving tactic to keep the status quo, to keep patients silent and to keep the power they have learned to accept, and in some cases demand.


Everyone is accountable for his or her actions. Physicians should be no different. If you do something wrong, you should be made to pay the consequences. If a doctor abuses -- it may not be today, it may not be tomorrow; it may be next year or maybe 20 years from today -- there should be a system in place where a patient can go to report what happened to them.

Victims can only start to heal when they are able to vocalize, and that can take years. If the abuser happens to be a health care professional, they have more reason to delay asking for help. We as victims need to be treated with the same respect that health professionals demand. We as victims crying in the dark need for you to recognize that by not feeling our pain, not listening to our single voices, we have no value, that we, like ants, can be trampled underfoot.

The western world vowed after the Second World War we would not allow another Hitler to be spawned, but in order to do that we sometimes have to resort to dictatorship methods to stop that from happening. We in Ontario are facing a dilemma on whether to dictate to the health care professionals something they should have been willing to do on their own on ethical grounds. If they were willing to accept that kind of responsibility, it would have been in place by now.

Before I went public I personally mentioned about my abuse to at least 11 doctors. No help was offered. Sometimes legislation is the only way we can be sure changes are made. Sexual abuse of our women and children is of epidemic proportions. By taking a mandatory reporting stand, you are sending a clear message to the rest of Canada that Ontario is a leader in respect of individual human rights and will not allow one segment of the population to abuse another segment of the population.

Bill 100 will transcend even your term in office. It is not a panacea. It is not the answer. It won't stop health care professionals from abusing. It is the first step by the government of Ontario to recognize its responsibility to the people who helped put it in office. Please do not allow the medical profession to seduce you into watering down this bill so that it becomes ineffective. Neither allow it to pass so that it can be successfully challenged in the court system by large lobby groups with very deep pockets. Make it effective. Make it work. Let the citizens of Ontario know that you are willing to take the first step towards zero tolerance of sex abuse by the health care professionals in this province.

The first step down a long road is usually the hardest, but you will go down in the history of Canada as being the first to recognize that violations of individual rights and freedoms to our person while under a health professional's care will not be tolerated, therefore taking that valuable first step.

Ladies and gentlemen, it was important for me to be here today. I thank you for your patience. I hope it was not in vain.

The Chair: Ms Halliwell, I don't think that anyone could have put their case more eloquently than you have this evening. Despite the laryngitis, we're glad that you were able to come to speak to us. I know we have some time for questions but, quite frankly, the message that you read was very overpowering. I don't know if there are any questions. Rather, the members just need to think about what you have said. We thank you very much for coming this evening.

Ms Halliwell: Thank you very much. If I can't speak for the next week, it was worth it.


The Chair: I would then call upon our next presenters, the representatives from the Ontario Society of Occupational Therapists, if they would be good enough to come forward. Help yourself to some water, if there's still some water and glasses there. We can get some more. I apologize that at the end of the day I'm afraid we've fallen behind, but we appreciate that you have stuck with us and are here to make your presentation. Please go ahead and introduce the members of your delegation and then begin your presentation.

Ms Debbie Cameron: I'd like to begin by thanking you for the opportunity to come and present before you tonight. I'll just begin by introducing ourselves. My name is Debbie Cameron and I'm the vice-president of the government affairs division of the Ontario Society of Occupational Therapists. To my left is Christie Brenchley; she's an occupational therapist as well and our executive director. To my right is Mary Kita; she is the co-chair of our RHPA task force and a senior occupational therapist at Riverdale Hospital here in Toronto.

The society is pleased to have this opportunity to respond to Bill 100, An Act to amend the Regulated Health Professions Act, 1991. There are currently over 2,400 occupational therapists in the province of Ontario employed in a variety of settings including, but not limited to, hospitals, treatment centres, schools, community and private practice. We work with clients of all ages whose lives have been disrupted by physical injury, illness, the aging process, congenital-development disabilities or social and emotional problems.

Occupational therapy is client-centred and focuses on facilitating the achievement of the client's personal goals. We also focus on maximizing functional performance in the areas of self-care, productivity and leisure and enhancing a person's ability to live independently in their community.

The Ontario Society of Occupational Therapists firmly believes that sexual abuse of clients by any health professional is never acceptable and must not be tolerated. We do, however, recognize that sexual abuse by health professionals occurs. We, as occupational therapists, join with the general public in its concern about this issue. We believe that all health professions have a responsibility to educate their members, promote the prevention of sexual abuse and comply with all legal requirements. As occupational therapists and professionals, our members do not wish to practise alongside of others who commit offences of this nature.

We'd like to begin by stating that the society strongly supports the consensus recommendations of the Ad Hoc Coalition of Regulated Healthcare Associations. This group's aim from the beginning has been to work alongside the Ministry of Health and other interested parties -- survivors' groups and regulatory bodies -- to ensure that the legislation is effective and efficient and protects the interests of both the consumers of health care and the professionals.

The recommended changes to Bill 100 and their rationale has already been clearly discussed in great detail by the coalition. Therefore at this time we will only state that we support the coalition's position in all areas, including definition of sexual abuse, mandatory reporting by professionals, the therapy and counselling fund, intervenor status and the grafting of Bill 100 onto the RHPA.

The reason that we made the decision to present here tonight was to lend breadth to the coalition position and also to represent a small female-dominated profession. Therefore, we would like to utilize our time here tonight to discuss specific issues which concern us directly as occupational therapists. Our concerns fall under four major categories: the potential impact of Bill 100 on the therapeutic relationship, the definition of sexual abuse, the therapy and counselling fund and the nature of our profession.

There are many instances in which our practice includes touching of sensitive areas and discussions of sexuality. As part of our assessment and intervention, we explore with clients their functioning in their daily lives and roles. These roles may run the gamut from dressing and toileting skills to vocational rehabilitation.


Depending on the individual circumstance, their roles as sexual beings may be discussed. An occupational therapist may frequently need to touch a client during a treatment session, for example, while fabricating an orthotic, facilitating movement of a limb, teaching a life skill or transferring a client from bed to wheelchair. Therapists may also utilize touch to provide comfort, support and encouragement.

As occupational therapists, much of the successful outcome of our treatment depends on our ability to develop a strong therapeutic relationship with our clients. This relationship is based upon open lines of communication and trust, and it is vitally important to both therapists and their clients that this relationship remain a strong one.

An outside observer may view legitimate treatment activities as inappropriate or not within the scope of occupational therapy practice and thus reportable offences. Furthermore, therapists who fear that their actions could be misconstrued may withdraw slightly from a therapeutic relationship and limit their interventions. Literature on sexuality frequently states that clients already feel that sexuality is not adequately addressed, particularly during the rehabilitation process.

I just wanted to draw one example which Mary brought to my attention from her particular practice at Riverdale. There was a gentleman who had suffered a stroke and had been in Riverdale for quite a period of time. He was due to go home for his first weekend leave with the family. The team felt that they had adequately addressed every issue that could possibly come up. They'd investigated the bathroom and put in grab bars. They'd figured out how the client could get home and what transportation would be involved. They thought they had covered all the bases.

They couldn't understand his growing concern about going home for the weekend. Finally, with much prodding, he admitted that what he was really concerned about was the fact that he would be sleeping in the same bed with his wife for the first time since his stroke. He had no idea about how to deal with that situation. This is the type of situation in which an occupational therapist may need to discuss sexuality. It's a necessity that it be discussed with clients in that sort of situation.

Our feeling is that Bill 100, as currently written, may act to distance therapists from their clients and inhibit strong therapeutic relationships. Therapists would be hindered not only in their ability to do their jobs to the best of their ability, but even more importantly, our clients would not be well served.

The next issue that we'd like to talk about is the therapy and counselling fund. Traditionally, the role of colleges has been to encourage ethical and professional conduct and to ensure that those persons found guilty of misconduct are penalized. The proposed request that colleges administer a therapy and counselling fund is an additional responsibility. We are very concerned with the conflict-of-interest situation that this places the colleges in. Colleges should not be responsible for dispensing funds which can only be accessed upon a finding of guilt. As suggested by the coalition, we feel that the responsibility of administering the fund should be given to a third party, as is done currently with the criminal compensation fund.

If the fund should proceed as outlined currently, we are concerned with the financial burden that this places on our members. Occupational therapy is a newly regulated, small profession and as such will be struggling to meet the initial startup costs of regulation. As professionals, we eagerly accept the high cost of self-regulation, but do not believe that the burden should be onerous on our members.

The Ontario Society of Occupational Therapists supports the fact that sexual abuse of clients is intolerable. However, it is also important that members accused of abuse are not unduly victimized. A single all-encompassing charge of sexual abuse as currently outlined in Bill 100 creates the potential for serious harm to a health professional's career, family and entire life by the act of laying a charge. Regardless of guilt or innocence, or severity of the abuse, the health professional will be charged with sexual abuse.

In the minds of the public, they will automatically be assumed to have seriously violated a client; ie transgression or intercourse. The overwhelming impact of having a charge laid, regardless of outcome, cannot be underestimated. We recognize that it is impossible to ensure that only guilty members are charged, but steps must be taken to ensure that the charge laid is appropriate to the suspected abuse.

For this reason, as well as others outlined in the coalition response, we support the recommendation that the definition of sexual abuse encompass three categories rather than the only one as currently written.

We would urge you to consider the impact of Bill 100 on each of the professions regulated under the bill. These professions vary greatly in many ways, including salary, size, gender proportions, personal contact with the public and incidence of sexual abuse. Occupational therapy, for example, has approximately 2,500 members in the province, is 97% female, has a relatively low salary scale and little documented history of sexual abuse of clients. It is important to recognize that all of the research and knowledge gathered to date regarding this issue pertains to a very small number of professions. As occupational therapists, we recognize the severity of the problem and we accept our responsibility for our part in it. We feel, however, that changes to Bill 100 are essential if it is to be fair and equitable to not only the public and survivors but to each one of the regulated health care professions.

In summary, the Ontario Society of Occupational Therapists strongly supports the recommendations as made by the ad hoc coalition of health care associations. We also strongly support the intent of Bill 100 but do not feel that the act as currently outlined will meet the stated intent to the satisfaction of either the public, the professionals or the survivors.

Ms Haeck: Thank you for your presentation. You mentioned the therapy and counselling fund and you answered at least one part of my question, giving me an idea of the makeup of your organization, that it is 97% female and in all likelihood has never had to deal with this particular issue by having someone charged with sexual abuse. You're nodding, so I suspect that you're saying yes, you've never encountered that particular issue.

I understand your concern around the funding mechanism and that as a small organization, newly regulated, you may feel that somehow where there is a possibility in some of the other professions where there has been more abuse you would be paying for them in essence. But have you given any consideration to possibly pooling with some of the other newly regulated professions which might have some similar concerns as you do?

Ms Cameron: If I could just answer that question, I'd say that with us representing the professional association, we won't be involved in terms of the fund. That would be our college's responsibility. We were speaking more about our concerns about the fund rather than the colleges' concerns, and I'm not sure whether they have looked into the pooling of resources at this point.

Ms Haeck: In all likelihood, since in the previous two years you have not had a charge laid against one of your members, and that history is outlined in the bill, you would only be required to keep $10,000 in the fund. Would you believe that to be an onerous situation?

Ms Cameron: I'm not sure that I would consider the $10,000 to be particularly onerous at this point in time, but I do think it's important to consider the other attendant costs that would go along with having a fund of that nature. I think that although we haven't looked into it in depth, there are a lot of administrative costs that would go into setting up a fund; there would probably be a lot of legal costs in terms of ensuring that the fund was properly administered. I think having that $10,000 set aside is obviously workable even for a small organization, but the attendant costs in terms of the extra workload for the college and legal costs and administration costs may make that figure a lot higher than the $10,000.

Ms Haeck: I hope we can minimize those attendant costs, because I have a suspicion they may not be quite as onerous, but then I'm making a supposition here.

Do I have any more time, Mr Chair?

The Chair: You have time for one final question.


Ms Haeck: You have come at a time where you've just heard some very impassioned words and ones which obviously have swayed me and, I'm quite sure, other people, because they were very heartfelt from very awful experiences.

You mentioned that you feel the whole mandatory reporting mechanism should be changed. I have to say to you, after listening to the previous presenter, that I would feel that mandatory reporting is absolutely essential even for verbal remarks, and other victims who are sitting behind you feel the same way. Why would you, say, even speaking personally, feel that it would not be a requirement?

Ms Cameron: I think that's a very good point and I agree with your initial comments about the opportunity to hear some of the survivors and how that's impacted. We had that opportunity as well in some joint meetings that we've attended over the last few months, and certainly from a personal perspective I found that very valuable. It was very important to hear it from their perspective, something we hadn't had the opportunity to hear before.

I think there are quite a few reasons outlined in the coalition position and I won't try to encompass all of them. I guess, from my personal perspective, the reason that sways me the most is that experiences shown in other jurisdictions, and Minnesota is the one that was quoted in the coalition response, where they have similar mandatory reporting that encompasses that entire range, from words and gestures through to the other, since they have put that into place the amount of reports has decreased. In other words, instead of increasing the amount of reports coming from people, the reports have decreased.

I'm not saying that's a good thing, I'm not saying that reflects well on the professionals involved, but I'm saying that if a system isn't seen to be fair and equitable by the professionals it's regulating, then they will not comply with that system. I think you can even go so far as to say they will not buy into the system as a whole instead of just to that one small part. I feel that the risk that you're taking in allowing mandatory reporting for all of those things will not get the benefit which we would like to see happen, which is more reporting of damaging behaviour.

To follow further on that, I think it's important to note that the coalition position around mandatory reporting was not that those words and gestures could not be reported. That was an option that was suggested, but what was suggested was a duty to intervene where a range of options was available. So persons witnessing something that they were a little bit unsure about or weren't quite sure what was happening could take the step of approaching the person and educating the person and letting him or her know that perhaps their words and gestures, while not meant that way perhaps, may well have been meant that way but may not have and educate them about how that came across to another professional and take that step. The other options would be to meet with the clients involved and tell them that they had the option of reporting it to the college.

I don't think that our position is that we don't believe in mandatory reporting. I think we want a workable situation, and we don't believe that will be workable for the survivors.

The Chair: Thank you. I'm afraid we'll have to move on. On behalf of the committee, I thank you all for coming this evening and for your presentation.


The Chair: If I could then call upon the representatives from the College of Physicians and Surgeons, I welcome you to the committee and also apologize for the hour. We have an oral presentation which has been distributed, as well as the other recommendations which you have made. Once you're settled, if you would be good enough to introduce those who are at the table, then please go ahead.

Dr Joe Homer: It's my privilege to introduce the representatives from the college. Allow me to introduce myself first. My name is Dr Joe Homer. I'm the past chair of the college's legal and internal change committee, which produces most of the college's sexual abuse recommendations. I currently chair the college's ad hoc committee on Bill 100. With me to my immediate right is Dr Rachel Edney, who is the current chair of the college's patient relations committee. She is the immediate past president of the college and is a past member of the sexual abuse task force. To her right is Ms Judie McSkimmings, a sexual abuse counsellor who is also a current public member of our council and is a member of the discipline committee of the council. To the far right is Dr Michael Dixon, the registrar of the college.

We appreciate the lateness of the hour and how tired you must be by now. You have received advance copies of our written submission. Tonight we will touch just briefly on key issues so that you may use the bulk of the time for further discussion with us.

I will start by recommending the submission made by the coalition of colleges and transitional councils to the committee. The College of Physicians and Surgeons of Ontario participated in that group and we support its recommendations.

The CPSO also supports much of Bill 100. It reflects many of the recommendations the college asked for to help our ongoing reform process. But there are several areas where serious problems will occur if amendments are not made now. I would ask Dr Edney to carry on, to begin to highlight some of these problematic areas.

Dr Rachel Edney: The success of this entire bill rests on whether or not we get the definition of "sexual abuse" right. To be right requires that it be clearly understood by the public and the profession, that it be enforceable and that it allow for the successful prosecution of wrongdoing. An unclear definition, coupled as it is with mandatory reporting, will undermine the college's ability to encourage the profession to accept mandatory reporting of sexual abuse. The definition must also work for 24 different professions.

The current definition does not meet those needs, nor do the proposed amendments. Many remarks or touching actions could be considered of a sexual nature, but they may also be totally appropriate and clinically required for quality health care. The intimate examination of genitalia or detailed questions regarding sexual practices are good examples.

If doctors are unclear about the offence, they will also be unclear about reporting it. The result will be that they do not report or, alternatively, that they report anything and everything and bury investigators in a flood of paper.

Definitions that ask doctors to judge harm to a patient or determine what demeaning is call for an opinion which the practitioner may be unable to provide. It is also irrelevant. The important criterion is to determine acceptable or unacceptable behaviour. Definitions that are based on exploitation require a very subjective assessment and become extremely difficult to prosecute.

We strongly support the definition put forward by the coalition of colleges. It requested that a new subsection be added to section 3 of Bill 100. It would state: "For the purposes of subsection (3), `sexual nature' does not include touching, behaviour or remarks of a clinical nature appropriate to the service provided." We believe this meets the criteria and the needs of the legislation as much as any definition can.

The college introduced mandatory reporting of offences involving sexual acts and sexual touching in March 1992. We opposed it for sexual abuse offences involving words and gestures as defined in Bill 100. The category is highly suggestive and could result in so many reports that it would be very difficult to determine which ones signalled serious problems and which were the result of misunderstandings.

If this is to be reported on a mandatory basis, we believe it will only work with an appropriate definition, as outlined, and as long as colleges have flexibility to respond appropriately. If the recommended definition is adopted, the college accepts mandatory reporting of the third category.

The ministry's concept of assessment and remediation appears designed to provide this flexibility. Without detailed wording, it's difficult to judge, but as described, it should allow colleges to determine the nature of the problem. However, if remediation is to work effectively, colleges must have the ability to require that it be completed successfully by the practitioners. Otherwise, survivors rightly will see this as a way to protect practitioners from the process.


Ms Judie McSkimmings: We're also seriously concerned that the government intends to limit patients' access to information about doctors found guilty of offences. Findings of the college's discipline committee are now available to the public, covered by the media and regularly published. There is no arbitrary time restriction. But under the RHPA and Bill 100 there will be a cutoff period after which public information is to be removed from the public register. Not only is it impossible to do, but it will not serve the public interest. Why is the ministry proposing further information be added to the register, yet asking that new restrictions be placed on the public's right to access this information? Surely the intent of a public register is to provide patients with the information and let them decide what is relevant.

Intervenor status is a difficult issue. Discipline hearings are by their nature legalistic and dispassionate processes designed to determine the guilt or innocence of the accused. It is not surprising that survivors with genuine emotional needs as a result of abuse find this process wanting.

We believe the ministry has reached an appropriate balance in the legislation between respecting the needs of survivors to participate in the proceeding and opening up new grounds for appeal. The college will continue its efforts, as described in our brief, to provide other effective ways to include complainants in the process.

Dr Michael Dixon: Subject to our comments, we support mandatory reporting for sexual abuse within and across the professions. We also believe these reports must be forthcoming even if the patient does not consent to the inclusion of his or her name in the report. If the college is to effectively deal with sexual abuse, it must have the information necessary to do the job.

The college may not be able to act on a single report, but coupled with others or with complaints, the information is very useful. It should be noted that the college has strict procedural rules to protect patients' confidentiality and the rights of doctors about whom reports are made.

We also believe the treating professional must report as well. He or she has no way of really knowing whether one patient or 10 patients have been abused by the practitioner-patient. If we have the information, we may be able to assess if other patients are at risk. The college has established procedures for receipt of these reports to minimize as much as possible disincentives to seek treatment.

The college supports the ministry's proposal to remove mandatory reporting of incompetence, misconduct and incapacity across the professions. Because of the diversity in professional standards for 24 different practitioners, it would have been unworkable.

Mandatory reporting of serious incompetence may well work within each profession, but at this time the RHPA only provides the college with inadequate powers to deal with this information. The only alternative is discipline, a process often totally inappropriate for these problems. A more effective response would be to review or assess the doctor's clinical ability and require that appropriate remedial education or other upgrading be successfully completed.

Dr Homer: Our final and most serious concern is the proposed funding scheme for therapy and counselling. Unfortunately, we've concluded that it does not answer the needs of survivors, and may indeed put them at further risk. It will undermine professional cooperation and support for Bill 100, and it will risk the entire RHPA regulatory structure. The college is fundamentally opposed to this proposal in its present form.

We acknowledge that survivors need therapy and many need assistance to obtain it. We are prepared, under Bill 100, to obtain moneys for this goal, but we do not wish to participate in such a problematic scheme.

Professional groups and regulatory colleges believe the fund penalizes the innocent as well as the guilty practitioner, that it provides restitution, which we feel is an inappropriate role for a regulatory college, and that the smaller colleges may well go bankrupt trying to fund it. We believe that it places colleges in a conflict-of-interest position.

Even survivors are concerned. Money will only go to a small percentage of victims, those who have been abused by a regulated health care practitioner. Survivors are eligible only after a long period of involvement with the complaints and discipline process. It provides no assessment of need; a victim of rape gets the same amount of money as the victim of a lewd remark.

Of further concern is that the proposal puts vulnerable survivors at further risk by funding unregulated therapists. We recognize that there are many well-qualified therapists who do not belong to a regulated health care profession, and we believe that patients have the right to choose their treatment or practitioner. But it is also true that there are unregulated therapists who do not have sufficient qualifications or training. In fact, some are former doctors who have had their licences revoked for sexual abuse.

In this scheme as proposed in Bill 100, there is no valid mechanism to protect survivors. Colleges will not be able to determine if a therapist has at any time or in any other jurisdiction been found guilty of sexual abuse. There is no body to consult; there are no records retained on unregulated therapists. Furthermore, information on the college's public register will be removed after an arbitrary time limit, according to the present form of Bill 100.

Further, requesting the therapist and survivor to sign a paper outlining the therapist's qualifications does not provide, in our judgement, an effective way to determine if the qualifications claimed do in fact exist.

Asking a survivor to sign another document acknowledging that he or she is aware the unregulated therapist is not subject to professional discipline is reminiscent of the philosophy "Let the buyer beware." Such a concept is inconsistent with the public accountability so desired and required under the RHPA. It will only serve to give survivors a false sense of security about the therapists they have chosen. Where are the survivors to go if they are abused further by unregulated therapists? There is no regulatory body to complain to and no college to remove that person from practice.

Dr Dixon: If the fund is imposed as currently proposed, we will of course obey the law. But we do not wish to be party to requirements which will in effect place vulnerable patients at further risk.

The college will not be in a position to provide any assurances to survivors as to the background, conduct or qualifications of the therapist other than what information may be allowed on our own public register. We will have to advise survivors of our inability to do this.

We urgently urge the government to postpone implementation of the fund until appropriate alternatives are found. Many have been suggested to this committee.

We recommend another alternative as well: Use the moneys provided by colleges to expand or enhance existing sexual abuse counselling services across the province. In that way, survivors will be able to readily access therapy from the practitioner of their choice, with some assurance of accountability for that person's conduct.

Mr Chairman, there are many positive and worthwhile objectives in Bill 100 which this college wishes implemented. However, we urge the government not to jeopardize this progress. We urge that these concerns be addressed.

The Chair: Thank you very much. We will begin questioning. Mrs Haslam.

Mrs Haslam: On page 6, around assessment and remediation, you're talking about the fact that without detailed wording, it's difficult to judge. You're saying the college should have the right to make recommendations and assessments of what they're doing. What happens if those doctors don't take the courses? What options are open to you now as a college?

Dr Dixon: At the present time we are in a position where we can urge our members who are found to lack clinical skills to voluntarily undertake remedial action or to limit their practice. But unless we have some objective evidence that we can present before a discipline hearing which demonstrates substandard practice, in essence we can do nothing. That is one of the major shortfalls of the Regulated Health Professions Act, that whereas it provides the mechanism for physicians to be assessed by the college, there is no provision which will require further intervention in the form of education or remediation or further assessment.


Mr Jim Wilson: Just a quick question with respect to your liability in relation to unregulated practitioners: I heard some snickering in the room, so I just want to make sure that everybody knows exactly what we're dealing with in the act here. It says:

"Choice of therapist or counsellor

"(7) A person who is eligible for funding is entitled to choose any therapist or counsellor, subject to the following restrictions:

"1. The therapist or counsellor must not be a person to whom the eligible person has any family relationship.

"2. The therapist or counsellor must not be a person who, to the college's knowledge, has at any time or in any jurisdiction been found guilty of professional misconduct of a sexual nature" or a criminal offence "of a similar nature."

Paragraph 3 goes on to explain, as you've explained it in your brief, that if it's an unregulated therapist, there'll be an exchange of paperwork.

There's no relief from this requirement, as I read this bill, so I think you do have a valid point. How are you to judge an unregulated professional? You're to release this abused person from essentially your process out into the hands of an unregulated person and you have the liability, to some extent anyway, I think to a large extent, as to whether or not you're releasing the survivor into some competent hands or not.

Do you want to elaborate further? We're on time allocation here, and we have an hour and a half tomorrow to deal with this bill, which is probably the most serious health bill we will see over the next decade. Have you come up with any suggested wording? I would not blame you if you wanted wording to relieve you of that liability, but I suspect that your intentions are better than that, and that is to make sure that the survivors actually get decent counselling and therapy.

Dr Homer: You're absolutely right. I think we do have some liability which we're not anxious to undertake. We've worked very hard with ministry officials to try to make the funding proposal workable. This is one area where we still see problems that exist. That's not to say that we're opposed to legitimate therapy and counselling.

One of the alternatives, as we alluded to briefly in our oral brief, is that we support various alternatives that have been put before this committee by the coalition of colleges, one of which is to support existing counselling and therapy services by a number of alternatives, where victims could access services much earlier in the process, where we would have some assurance of the qualifications, training and skills of the therapist providing the service.

We would look forward to moving with that, but it is still, as presently designed, unworkable. I think it's one of the reasons we're saying the idea's right; it's just the process, as it's presently structured, that we don't think is workable. Temporarily withdraw it from the bill so that we can continue to find other, more practical alternatives that are workable.

Mr Jim Wilson: A second question: When we dealt with Marilou McPhedran and the CPSO task force and the recommendations coming out of that, my party -- I did, actually -- during the Regulated Health Professions Act hearings talked about a victims' compensation fund. We were thinking at that time that if the college imposes fines on physicians who are found guilty of sexual abuse, that money would go into a pool of money to help survivors. Under this act, the money goes to Floyd Laughren and you don't get anything, and you have to invoke another section of the act to actually levy your costs back.

I think that's a terrible letdown for survivors of sexual abuse and I don't think they all realize that the government could get rich off this. Then you have to do a second levy on the physician in order to keep enough money in the college process so that you can continue prosecuting abusers. It's crazy, in my opinion. That might be because I'm tired, but I think it's a pretty crazy system.

I want you to comment on that. In particular the question is, I can see a disincentive to fining. Why would you want to fine abuser Dr X $35,000? That's $35,000 less that Dr X has to pay when you go to levy him, then, to recover your costs for the investigations and the entire disciplinary process. If I were the college, I wouldn't want a fine. I don't get that money; it goes to the treasury of Ontario. I would simply be invoking the levy section and trying to get back costs so that you have enough money to deal with other abusers down the road. Could you please comment on that?

Dr Homer: I would find myself personally in agreement with the point you have just recently made. I would perhaps also direct you, Mr Wilson, and other members of the committee to pages 19 and 20 in our report. I think you'll find there is a catalogue there of at least nine points, that we don't think the fund in its present format is indeed workable or administrable in a fair and equitable sense.

I can assure you that for the purpose of including things in the report, it's not a complete list by any means. This is a problem area; it always has been with this legislation. It's hung around the neck of this legislation like an albatross. I say that while I will still compliment the ministry. They have tried hard to make the program work. Unfortunately, at this date, it still is not workable, for the many reasons that we've pointed out to you, and it is difficult for us to enthusiastically support something that we don't think is workable and indeed is within the regulatory mandate of our college in the first place.

Ms Haeck: A quick question: One of the concerns you raise is about the survivors making a choice of a therapist who may come from the realms of the unregulated. In listening to a range of survivors, as we have over the last two weeks, they definitely have expressed a concern, not to suggest that there can't be problems with someone within the unregulated health care professions, but to a large degree the list of those who have been the most severe in the way of abusing are from the regulated side. We're talking about psychiatrists, doctors, dentists, chiropractors, massage therapists, the five that come to mind.

The survivors have indicated the desire to be able to initiate their own healing by using the mechanisms or therapies out there, not just, say, going to a psychotherapist. As you've heard probably this evening, some of them really feel that support groups have provided them with the mechanism of dealing with their healing in a way that going to another regulated professional has not. Do you not feel that, in essence, since the survivor has made that choice, you are absolved of liability?

Dr Homer: I can tell you that I don't think we'll be able to assist the survivor very much in pointing out what the qualifications are because it's in an unregulated area. As to the fact that we are still going to be required to participate in the payment of the fund, and there are amendments in the act that will make that a professional liability, I don't see how that excuses us from it.

What it really asks us to do, in my opinion, is contrary to the purpose of RHPA in the first place. Surely one of the basic tenets of RHPA was to insist on uniformity, consistency of standards, of training, of quality assurance delivery mechanisms within the regulated health profession field. But you are asking us to allow, to condone and to help pay for sending survivors from our process into a system where none of those parameters --

Ms Haeck: If I may question that somewhat in the sense that I sat on those hearings myself, yes, I agree that there was a range of accreditation and standardization that were addressed. There was also a range of concerns about the consumer having a right to choose among a range of professionals, so if I decided to go to a chiropractor, it wasn't necessarily getting a referral slip from a doctor in order to do so.

Dr Homer: No, but I would point out that a chiropractor is a member of a regulated college.

Ms Haeck: It will be, as of January.

Dr Homer: Presumably the standards that will ensure to the public that it's safe to do that will be there.


Ms Haeck: But there is a range of counsellors out there. We can all discuss our concerns about that, but social work at this point is not a regulated health profession, much as they dearly would love to be. They provide one of the largest mechanisms across this province dealing with counselling and are probably considered in a very positive light, in comparison to some other regulated professions, by the survivor group in particular.

Dr Edney: It's important for it to be clear that we do not have this concern because we think that unregulated professionals are unable to do a good job, because I don't believe that's true. We're certainly not saying that the only people who can help survivors are regulated professionals. I'm a family doctor and I refer to non-regulated professionals all the time. We just have a concern, particularly when we have seen, as Dr Homer mentioned, some of our professionals lose their licence and go out and set up as therapists and we have no way to tell the survivors that this is happening. We feel that could be very problematic, but we do not believe that non-regulated professionals are incapable of doing a good job.

Ms Haeck: That's a very interesting point which I think we as a caucus should have a discussion about; you're flagging a very interesting point. But I'll leave it there. I know that there's a question from one of my colleagues across the way.

Mrs Sullivan: I have three areas that I want to explore. One is with respect to maintaining the register with the information relating to the results of proceedings. We will be putting forward an amendment that would eliminate the time lines for the maintenance of the register, and not only for the sexual abuse areas but for all areas of the profession. I just thought I'd let you know that. I just wanted to comment on it.

The second issue relates to victim impact statements and when they're most appropriate. I wondered if you would comment on that aspect of your recommendations, and after that I want to explore the fund more thoroughly.

Dr Homer: I think in principle we would support your first comment about removing any arbitrary time frames from information on the public register.

Victim impact statements: My committee's and indeed my own final conclusion on it is that this is a very valuable thing to happen and to have on the record of a disciplinary hearing. It's important, but I think from a legal sense it goes strictly to the question of penalty assignment. I don't think it has a place in the hearing where the facts are being heard on the merits of the case before a conviction or declaration of innocence is pronounced. But once that is done, I think it's most appropriate to introduce it before the penalty assignment.

Mrs Sullivan: In your view, is the wording as it's currently included in Bill 100 appropriate to make that distinction?

Dr Homer: I don't think it is, but you asked me what my opinion was. I'll bow to my colleagues who may have a little bit more knowledge of what the amendment or the consolidated report says. But if there is any question about the most appropriate place to put it, I say again it is after a conviction, before a penalty assignment, and I would urge you, as you go through this clause by clause, to consider that point of view.

Mrs Sullivan: The next issue relates to the fund. I think there's general concurrence among all parties, with respect to the value of a fund, to ensure that those people who require and want therapy have one method of ensuring access to treatment that they might otherwise not have. I'm quite taken, however, with the arguments that have been placed by the colleges with respect to the conflict-of-interest situation which may arise between the college as the disciplinary body and then the college as the funder of therapies.

You've suggested that there should be alternative mechanisms. I'm wondering if you have any to put forward. You understand that our time lines are very short. We have very limited time tomorrow with respect to shaping amendments and only a couple of hours in third reading, at which point no further amendments can be placed, so tomorrow is the last day. Some of the colleges have indicated that they may well go out of business, that they may go bankrupt with one hearing or two hearings as a result of the kinds of funding mechanisms that are foreseen in the legislation.

When you suggest alternative mechanisms, do you see a scope, by example for an intracollege fund or intercollege fund, I guess, in which case, do you see that should be a fund that is overseen by trustees, and what would the nature of that trusteeship be? Do you see an insurance fund? What are some of the alternative mechanisms that you think should be explored?

Dr Homer: I'll take a first crack at it, Mrs Sullivan. It's a complex area. All of those various schemes that you suggested have, at one time or other, certainly been looked at, trying to find out if there are any more workable.

The question with the insurance fund basically was, is it an insurable risk that a third-party agency would be willing to undertake? Should there be dedicated funds, an intercollege fund administered at arm's length by some administrative body? I think that's an alternative that we'd be willing to continue to work towards.

Funds obtained from guilty practitioners through fines: I'm not happy with the fact that they personally now go into the general consolidated revenue fund. I would much rather see them dedicated to victim therapy.

Where moneys can be provided: to expand and enhance existing sexual abuse, counselling services from whatever source, whether that's from participation of professional associations or colleges or indeed the ministry, which I think has an obligation to provide health care services in this province. I would be willing to continue to participate in any of those discussions because it is so unclear as to the best way still to work it even at this late date in the bill.

It pains me to say that I urge the government to withdraw the part of the clause of the legislation that pertains to funding, because it's not workable, it's not fair, it's not equitable and I think it will do harm to survivors more than they realize currently. They are still desperately in need of help in funding and they should get it.

Mrs Sullivan: I don't know where we go on that, given that we only have tomorrow afternoon, but the minister is in the room and heard what you had to say. Maybe we'll work something out before tomorrow morning.

Dr Edney: One of the things that I think was important was that you heard Ms Halliwell say that you need help earlier. Actually, I think it was the person who spoke before her. That's not going to happen now and that is one of the major issues here, that this funding is too late. We need funding sooner and whatever mechanism we can get that is a better way to do it.

Ms McSkimmings: The other thing is that this only provides funding for somebody who has been abused by a health care professional. It doesn't provide any help for somebody who has been used by clergy or other position of trust; a lawyer, for example. That doesn't seem fair to me. I would rather see the money go into province-wide sexual assault services that could be accessed by anybody who needs that. I worked in a rape crisis centre for 13 years and I know that waiting lists are very long because funding is very short. In my city, the waiting list is a year and a half to two years long for long-term counselling and that simply isn't acceptable.

The Chair: Thank you very much for coming before the committee this evening. We appreciate it very much.

Before the committee adjourns, if I could just remind members, under the motion that was passed in the House we must complete clause-by-clause consideration of the bill tomorrow. All proposed amendments must be filed with the clerk of the committee prior to 12 noon. I just wanted to stress that. At 5 o'clock tomorrow those amendments which haven't yet been moved will be deemed to have been moved and we will then have to move to vote on them. I just wanted to indicate again what was in the motion.

The committee now stands adjourned until 3:30 tomorrow.

The committee adjourned at 2149.