Tuesday 23 November 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

Ad Hoc Coalition of Regulated Healthcare Associations on Bill 100

Signe Holstein, coalition co-chair and executive director, Ontario Chiropractic Association

Dr Wendy Graham, member, committee on sexual abuse, Ontario Medical Association

Dr Bob Haig, chair, Bill 100 committee, Ontario Chiropractic Association

Pam Fitch, president, Ontario Massage Therapists Association

Ontario Physiotherapy Association

Beverley Lafoley, president

Cheryl Kirkness, member

Ontario Psychological Association

Dr Ruth Berman, executive director

Dr Iris Jackson, past president

Dr Carole Sinclair, member, ethics and policy committee

Coalition of Regulatory Colleges

Dr Catherine Yarrow, acting registrar, Ontario Board of Examiners in Psychology

Sharon Saberton, Board of Radiological Technicians

Jane Rogers, Transitional Council of Dental Hygienists,

Janet Ecker, director, research and policy analysis, College of Physicians and Surgeons of Ontario

College of Audiologists and Speech-Language Pathologists of Ontario

Barbara Meissner Fishbein, member. transitional council

Ontario Chiropractic Association

Janice Hughes, secretary-treasurer

David Chapman-Smith, legal counsel

Board of Directors of Chiropractic

Dr Edward R. Burge, chair

Jo-Ann P. Willson, director, policy analysis and research

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:

Haeck, Christel (St Catharines-Brock ND) for Ms Carter

Harrington, Margaret H. (Niagara Falls ND) for Mr Owens

Haslam, Karen (Perth ND) for Mr Hope

Wessenger, Paul (Simcoe Centre ND) for Mr Martin

Also taking part / Autres participants et participantes:

Wessenger, Paul, parliamentary assistant to the Minister of Health

Clerk / Greffier: Arnott, Doug

Staff / Personnel: Swift, Susan, research officer, Legislative Research Services

The committee met at 1604 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): Good afternoon, ladies and gentlemen, and welcome to the second day of the standing committee on social development's review of Bill 100, An Act to amend the Regulated Health Professions Act.

Let me say at the outset that we will hear from all of the witnesses who are scheduled today for the time they had scheduled. I realize we're starting late because of a couple of votes in the House, but if you're scheduled for today, you will most certainly be heard.

Could I then call the representatives from the Ad Hoc Coalition of Regulated Healthcare Associations on Bill 100. As you are coming forward, we had one question.

Mr Larry O'Connor (Durham-York): As we're about to start the public hearing process on this very important issue, for clarification, in the wish to have this committee hearing proceed in an orderly fashion and knowing that we have very limited time to actually deal with all of it and hear from as many people as we would want to, I just wondered whether or not we are going to finish clause-by-clause by December 7, so that we can have this proclaimed along with the other regulated health professions.

My concern is that I know there are many committee members who would like to sit in the evenings, and unfortunately we aren't able to do that. Can we then at least let the very numerous people who would like to make a presentation, who aren't going to have the time -- many of them will be victims -- file a presentation with the committee so that we can have that on the record as we go through this process?

The Chair: Yes. As you know, the committee has been directed to hold hearings and discuss the bill until December 7. Those are the instructions that we're under, and I assume, unless we get different instructions from the House leaders, that's what we will do.


The Chair: At the beginning of this presentation, could I just indicate that the Ontario Society of Chiropodists -- I have learned how to say that; actually I take great pride and I'm going to say it again, the Ontario Society of Chiropodists -- and the Ontario Podiatry Association, which are the second and third presenters today, have by letter indicated that their position is substantially that of the coalition. In order to provide time to discuss the position, in effect, of all three, they will have their time assigned to the coalition, but it is still the chiropodists and the podiatrists who have that time.

With that by way of explanation, would you be good enough to identify yourselves for the members of the committee and for Hansard, and then please go ahead with your presentation. Welcome to the committee.

Ms Signe Holstein: My name is Signe Holstein. I am co-chair of the Ad Hoc Coalition of Regulated Healthcare Associations on Bill 100. I would like to introduce my colleagues to you. On my immediate left is Wendy Graham, a member of the Ontario Medical Association. On my far right is Pamela Fitch, a member of the Ontario Massage Therapists Association, and on my immediate right is Bob Haig, a member of the Ontario Chiropractic Association.

My day job, so to speak, is executive director of the Ontario Physiotherapy Association. Prior to taking my current position, I was a practising physiotherapist.

Physiotherapy is a hands-on profession in which touch is an essential element of practice. As a consequence, we took a major role in organizing the ad hoc coalition in order to help the entire regulated health care sector come to grips with Bill 100, its antecedents and its implications.

All associations representing health care practitioners to be regulated under the Regulated Health Professions Act were invited to join the coalition. Our submission to this committee is endorsed by 15 of the 24 associations that will be regulated under the RHPA.

Our coalition represents a broad range of health care associations, big and small; associations that are newly regulated and others that have been regulated for a long time; associations representing established professions and others representing relatively new professions. Together we represent over 50,000 practitioners and students across Ontario.

Each association recognizes that the professionals we represent have been slow in confronting and addressing the very serious issue of sexual abuse. Every association agrees with the objectives behind Bill 100. We agree that there is no place for professionals who exploit relationships of trust or their patients' vulnerability by sexually abusive behaviour. We agree that professionals must be encouraged to report incidents of sexual abuse. We agree that severe penalties are necessary to deter sexual abuse by professionals. We agree that funding should be available for the treatment of survivors of sexual abuse. We agree that more can be done to streamline the disciplinary process, to make it more effective and to increase the participation by victims and survivors.

With that as background, we'd now like to address the five specific issue areas addressed by our coalition, beginning with the basic issue of the definition of "sexual abuse" in Bill 100. I would ask Wendy Graham to address this issue.


Dr Wendy Graham: My name is Wendy Graham. I'm a practising family physician in North Bay. For the past two years, I've been immersed in the issue of sexual abuse by physicians.

The objectives and perspectives that I bring to this exercise are quite simple: There is no place in our health care system for practitioners who sexually abuse their patients. Practitioners found guilty of sexual violation or sexually abusive touching or who are repeat offenders of other forms of sexual abuse must be cast out of the professions. A practitioner who has, through inadvertence or insensitivity, used words and behaviours perceived as sexually abusive needs to be sensitized through education and commit to change their ways.

I've been asked to talk on behalf of the coalition about the definition of "sexual abuse" that obviously lies at the heart of Bill 100 and its effectiveness. The coalition has so many concerns about the definition that it is difficult to crystallize them in a short presentation, but I'll try my best.

We don't think that a single definition labelled "sexual abuse" which covers all types of abusive behaviour will work. Common sense tells us that sexual intercourse, sexual violation and sexual touching in a professional relationship are simply wrong. The difficulty arises with the subjective interpretation of remarks and behaviour in a practice setting. How do you differentiate between sexual inquiries that are offensive and those that are therapeutically necessary? How do you differentiate between remarks that are sexually abusive and those that are rude, offensive or simply misunderstood?

The coalition is also concerned that one definition cannot possibly capture the myriad of procedures and therapies conducted by over 70,000 regulated professionals and 24 regulated groups. How can a podiatrist be governed by the same definition that applies to a gynaecologist? How can a psychologist be governed by the same definition as applies to a massage therapist? In some professions touch can be banned outright; in others touch is clinically essential and a critical part of healing. In some professions remarks having sexual connotations can be banned; in others, such as psychotherapy, such remarks may be essential in obtaining relevant information to determine the appropriate treatment. How can one definition cover this wide range of circumstances?

Our concern is compounded by the ministry's desire to remove the clarification power contained in subsection (4). We think this power is absolutely essential to allow each college to adapt the definition to the circumstances and requirements of each profession. We do agree that the power to extend the definition by regulation is inappropriate and should be removed, but the power for each college to clarify the definition by regulation should stay.

Returning to the definition of "sexual abuse," however, we wish to point out that Bill 100 in no way addresses the very difficult issue of consent. Is consent, whether real or inferred, a defence against a complaint of sexual abuse when occurring in a trust relationship? We think that no real consent exists in a practitioner-patient relationship and recommend that the legislation confirm that consent cannot be used as a defence, as a mitigating circumstance, in a charge of sexual abuse.

Bill 100 does not define what constitutes a patient or when a person becomes or ceases to be a patient for the purposes of Bill 100. Once again, defining when a person becomes or ceases to be a patient will vary across the gamut of health care professions, with a wide variation in ailments addressed and treatments provided.

Bill 100's definition of "sexual abuse" does not address the issue of intent. In some cases of sexual abuse, such as sexual violation, intent is unambiguous. Not so in the behaviour and remarks category. We are currently going through a revolution in social attitudes to sexual conduct and relations between sexes. We are also, particularly in metropolitan areas such as Toronto, having to deal with the increasing ethnic, cultural and religious diversities and traditions. We have to distinguish between conduct that is truly sexually abusive and that which is simply insensitive, annoying or rude. What is truly sexually abusive should be covered by Bill 100. What is insensitive, annoying or rude will in time be addressed through education, peer pressure and other types of formal sensitization.

The coalition feels strongly that a remark or behaviour that unintentionally causes offence should trigger sensitization through remedial training, not a complaint or a report of sexual abuse. We believe that an honest misunderstanding of what a practitioner intended by a remark should not necessarily result in a complaint or a report of sexual abuse, and I, as a patient, may choose to demand an apology from a practitioner as my full personal satisfaction to sensitize that practitioner about the impact of his or her conduct.

The definition of "sexual abuse" does not address the question of harm. In some categories of sexual abuse, such as violation, harm is clear. Not so with certain remarks and behaviour. If no harm is caused, should there be a complaint or a requirement to file a report? We think not. A complaint of sexual abuse will have a devastating effect on a practitioner, on the practice, her family and her standing in the community. Even if the practitioner is eventually cleared of wrongdoing, the stain of allegation will persist.

We have to recognize that the definition has to be, and be seen as, workable. It has to be clear. It has to be understood and interpreted by over 70,000 practitioners and 22 regulatory colleges representing 24 professions. It has to be understood by patients, employers and other third parties. It has to be reasonable and fair.

The coalition proposes a return to the three-part definition, as proposed by the government in Taking Action Against Sexual Abuse of Patients, to "sexual violation," "sexual transgression" and "sexual impropriety."

We also propose the introduction into the definition of what we call the exploitation formula first proposed by the College of Physicians and Surgeons of British Columbia. This concept gets to the heart of sexual abuse. It is the exploitation of the patient's vulnerability and of the relationship of trust with the practitioner that defines sexual abuse. The exploitation formula also gets to the issue of intent, requiring wilful, knowing, abusive action by the practitioner.

Finally, the coalition proposes that the condition of harm be added to the sexual transgression and sexual impropriety categories.

The actual definition we propose is set out on page 24 of our submission. Lest anyone suggest that what we have done weakens Bill 100, I say to you it does not.

The Minister of Health has said Bill 100 is designed to punish practitioners guilty of sexual abuse. The coalition believes that the proposed amendments add clarity; will encourage, and not discourage, reporting; and will assist in enforcement.

The Minister of Health has said that Bill 100 is designed to deter abuse. The penalties contemplated by Bill 100 will do that: the fine up to $35,000, potential loss of licence, payment of the costs of the victim's counselling and therapy, and reimbursement of the college costs for legal fees, the investigation and disciplinary process.

It is important that the committee recognize that the coalition does not argue or question these penalties. Severe penalties will be a major deterrent. We don't want to reduce the deterrent factor, nor do we wish to claim that these penalties are excessive for those who are actually found guilty of sexual abuse. They are not.

I'd like to turn things back to Signe.


Ms Holstein: I have been asked to address the second issue on the coalition's agenda, mandatory reporting of incidents of sexual abuse by practitioners. Under Bill 100 as drafted, a health care practitioner who has reasonable grounds obtained in the course of practising the profession to believe that another regulated health care practitioner has sexually abused a patient must file a report. The report is to go to the registrar of the college to which the abusing practitioner belongs. A practitioner who fails to make a report may be subject to disciplinary action herself.

Historically, incidents of sexual abuse have been underreported. Underreporting is the fundamental problem in deterring sexual abuse, in identifying abusive practitioners and in correcting abusive behaviour. How effective Bill 100 is will depend to a considerable extent on the degree to which practitioners respond to incidents of abuse by other practitioners.

In our submission, at page 27, we refer to the state of Minnesota, where mandatory reporting is imposed as a condition of licence. Reports of breach of practice standards have actually fallen since mandatory reporting has been introduced, and there have been no reports of sexually abusive words used by practitioners since mandatory reporting was introduced. The coalition is concerned that mandatory reporting requirements, if not handled properly, will result in fewer challenges to sexually abusive behaviour than occur now.

How do we propose to improve Bill 100? Practitioners are more likely to report incidents of apparent sexual abuse if it is completely clear when they are supposed to report and if practitioners believe that the consequences of a report are an appropriate and balanced response to the incident; if the punishment fits the crime, so to speak. If both of these criteria are not met, underreporting will continue. Let me explain why.

First, Bill 100 is not clear as to when a practitioner should report. What does "in the course of practising the profession" mean? What constitutes "reasonable grounds"? Does hearsay evidence constitute grounds for a report? Does the practitioner have to interview the practitioner and patient in order to put the incident in context? Does there have to be a patient-practitioner relationship with either the victim or the practitioner to trigger a report?

Second, practitioners will have difficulty accepting that Bill 100 puts in place balanced and appropriate investigative and disciplinary processes to handle reports of sexual abuse, a process that is fair and observes and protects the civil rights of both the accused and the complainant.

Third, what happens to a report? It seems that total discretion is left to the college. Uncertainty about what a college will do with a report, how, why or when the college might respond, will militate against reporting.

The problems will be particularly acute for practitioners in one profession judging the actions of practitioners in another profession. Bill 100 assumes a high level of awareness by one profession of the treatments and procedures of another. This, quite frankly, when you're dealing with 24 health care professions, is unrealistic.

Should a physiotherapist, someone from my profession, be required to judge whether the remarks of a psychologist constituted sexual abuse? Should a psychologist be placed in the position of judging whether the touch of a massage therapist constituted sexual abuse?

The coalition is very concerned that Bill 100's mandatory interprofessional reporting requirements will have two alternate results, both equally bad: either chronic underreporting due to uncertainty or excessive reporting that clogs up the disciplinary process. On the latter possibility, many coalition members fear that Bill 100 will generate well-intentioned but unwarranted interprofessional reporting of practices that are completely acceptable and have proven therapeutic value in other regulated professions.

Mandatory reporting by treating professionals is another area of grave concern to the coalition. If one professional comes to another for treatment and during that treatment discloses one or more incidents of sexual abuse, Bill 100 would bind the treating practitioner to make a report.

In addition to breaching the long-accepted rights of patient-practitioner confidentiality, we are very concerned that this will result in professionals avoiding self-referral for treatment of abusive or other aberrant behaviour. This is obviously counterproductive to the objectives we all share, those being to identify and correct abusive behaviour.

Finally, the coalition is concerned about the obligation to file a report if the alleged victim refuses to consent to such a report. Doesn't this simply perpetuate the victim's powerlessness in the face of the system, and what does it achieve? An alleged victim who refuses to consent to a report cannot be expected to assist with any investigative and disciplinary process, which likely means, assuming the abuse occurred, that the incident is not effectively addressed.

Our proposed solution which goes hand in hand with the coalition's recommended approach to the definition of "sexual abuse" is to give some latitude to professionals in the reporting of incidents of sexual impropriety. This latitude would apply only to the category that we refer to as sexual impropriety. Mandatory reporting would continue in the sexual violation category and, with great reluctance but in an attempt to achieve consensus, coalition members have agreed to mandatory reporting in the touching category but warn that this will inevitably be problematic.

We call our proposal the duty to intervene. In essence, it statutorily obliges the practitioner to respond in a way appropriate to each individual situation from a series of actions listed in the statute. Those actions are of increasing severity and include but are not limited to making a report of the incident. The practitioner could select any or all of these actions in response to the circumstance of each event. The actual wording of the amendment we propose is set out on pages 24 and 25 of our submission.

We think this approach will be far more viable in deterring and addressing sexually abusive behaviour in the behaviour and remarks category.

We also propose removing the phrase "has reasonable grounds" and the phrase "in the course of practising the profession." The coalition believes that a practitioner should respond to an incident of sexual abuse or sexually abusive behaviour wherever or however that practitioner becomes directly aware of the incident or the behaviour, and the only criterion should be if the practitioner believes the incident occurred.

I would now ask Bob Haig to address the next issue.

Dr Bob Haig: My name is Bob Haig. As Signe would put it, in my day job, I'm a practising chiropractor, and I chair the RHPA committee of the Ontario Chiropractic Association.

Like physiotherapy and massage therapy and other professions that are members of the coalition, chiropractic is a hands-on profession relying primarily on manipulation and physical treatment of the neuromuscular-skeletal system.

Virtually every patient interaction involves skin-to-skin contact of some kind, so for professions such as ours, there is considerable scope for honest misunderstanding both by our patients and by other health care practitioners unfamiliar with our treatment techniques and procedures.

Bill 100, as drafted, alarms us because we see it creating the potential for misinformed reports and complaints, and as both Signe and Wendy have said, once a complaint of sexual abuse is made, whatever the outcome of the disciplinary process or investigative process, the result for the practitioner is devastating.

However, I've been asked today to speak about two rather technical but important issues raised by Bill 100.

The first is intervenor status or what is referred to in section 7 of the bill as non-party participation in the hearing of complaints of sexual abuse by the regulatory colleges.

There are two types of intervenors to consider. The first and most important is the complainant. I have an association background, and I must say I was a little surprised to learn that college disciplinary proceedings view complaints as being a matter between only the college and the accused party, that the complainant is technically not a party to the proceedings.

The coalition understands and accepts that this is the case, that in a self-governing scheme disciplinary proceedings are a matter between a college and the member. But we also understand how the college disciplinary system appears to victims and survivors to minimize their impact on the proceedings, so we agree with the victims and survivors that much more should be done to both allow and encourage their participation if and when they choose to participate in the investigative and disciplinary process.

The second type of intervenor is persons or groups who represent neither the complainant nor the accused. We've called such people or groups third-party intervenors.

Bill 100 does not describe the role such third-party intervenors might be expected to play, and it gives absolute discretion to the disciplinary panel to grant leave to such third parties to have standing. It's in this respect that we believe Bill 100 has gone too far.


We're concerned that panels will cave in under pressure and allow multiple intervenors in inappropriate circumstances. Multiple intervenors can be used as a cynical strategy to delay disciplinary hearings and add to their cost unnecessarily, or to doubleteam either the complainant or the accused practitioner. Justice is not served by such strategies. In fact, doubleteaming obviously serves to simply perpetuate the victimization.

The coalition is also concerned that in the absence of firm statutory guidance, multiple third-party intervenors will almost certainly generate court challenges by the accused, in some cases simply delaying the disciplinary process but in others resulting in decisions being overturned. In the coalition's view, the legislation should not leave this excessive latitude for the reversal of decisions on technical or procedural grounds, with the potential of letting the guilty go unpunished.

We propose that Bill 100 restrict the participation of non-party intervenors to those persons who satisfy the accepted legal test in this area of law: the test of relevant interest. This test is satisfied where the disciplinary committee, after that panel makes a determination of guilt in a particular case, accepts that the witness will assist the panel in assessing the emotional or physical damage sustained by the victim or will assist the panel in determining the appropriate penalty or penalties following a finding of guilt and in light of the harm caused in the particular circumstances at play. Our legal advice is that this test of relevant interest will mean fewer appeals on technicalities and a stronger guarantee that findings of guilt against offending practitioners will be upheld.

The second issue area I've been asked to speak to goes to the heart of Bill 100. As everyone here is aware, Bill 100 has been structured as an amendment to the Regulated Health Professions Act that was passed by this Legislature in November 1991 and is scheduled for proclamation by the end of this year.

We understand why the government decided to graft sexual abuse legislation on to the RHPA. It's easier. It makes use of an existing statutory and regulatory framework and simply expands that framework incrementally, instead of starting from scratch, to cover sexual abuse. But that grafting approach creates a number of anomalies and problems. Signe and Wendy have already mentioned several. Let me just summarize.

It means that only the health care sector is covered, in spite of a tide of evidence that sexual abuse of trust in unbalanced power relationships is not restricted to the health care sector.

It also means that only the regulated health care sector is covered. The large and growing unregulated health care sector, where substantial potential for sexually abusive conduct exists, is left untouched.

The ministry states that Bill 100 can apply only to the regulated sector because only that sector has the existing procedures to handle complaints. But that conundrum has been created only by the ministry's decision to attach Bill 100 to the RHPA and to use the RHPA's regulatory structure.

Finally, this grafting approach, we fear, means that Bill 100, once passed, will effectively be cast in stone. It will remain unchanged and unchangeable, even in the face of practical experience, changing circumstances and requirements, because the government or the Legislature will be reluctant to reopen the omnibus and complex RHPA in order to amend only those parts dealing with sexual abuse.

The coalition believes it is absolutely essential that Bill 100 be opened to periodic review and refinement, and as part of the RHPA we simply don't think that's likely to happen.

There are a number of alternative approaches that the coalition considered in trying to get around these problems. In the end we decided to propose that Bill 100 be severed from the RHPA and restructured as standalone legislation.

We are prepared to accept, for the time being, the application of Bill 100 to the health care sector only, and perhaps only to the regulated sector, as a first step. But we think it crucial that the scope of Bill 100, as a standalone statute, be incrementally expanded to cover sexual abuse by provincially regulated professionals in all sectors where unbalanced power relationships and relationships of trust between client and professional exist.

Legislation that addresses only the regulated health care sector is tokenism. It makes an inference about conduct and standards of professionals in the regulated health care sector that is manifestly unfair and offensive. It also addresses only one small segment of the society-wide problem of sexual abuse.

I would now turn the presentation over to Pam Fitch.

Ms Pam Fitch: Thank you. I am here as president of the Ontario Massage Therapist Association. I am a registered massage therapist in private practice in Ottawa. It's a privilege to be able to speak to this committee as part of the ad hoc coalition of regulated health professionals.

Massage therapy is one of the few professions where touch is integral to achieving client health and wellbeing. Unlike several of the other colleges, which have strict codes against touching patients, massage therapists use their hands to heal. Like physiotherapists, we are a predominantly female profession. Many of us work directly and intentionally with survivors of sexual abuse so that they may reclaim their bodies and be empowered to decide how and when they want to be touched. It's an extraordinary experience to witness the healing in a client as they progress from victim to survivor.

Massage therapists support the objectives of Bill 100 and urge that action be taken to address sexual abuse by professionals in all positions of authority, power and trust. Having seen the enormous potential for change that appropriate therapy for sexual abuse can offer a victim, we believe that each survivor should have the right to heal.

I've been asked to present the coalition's position on the therapy and counselling fund referred to in section 85.7 in Bill 100. This is a highly contentious and sensitive subject and has been the topic of a great deal of debate at our consultations with victims and survivors and their representatives.

I think, to begin with, we have to get straight what each college's therapy and counselling fund is for. It's not for victims and survivors to obtain damages, compensation or restitution. If that's what a victim or survivor needs, that person is in no way precluded from taking civil action against the practitioner or seeking compensation from the Criminal Injuries Compensation Board.

Bill 100's therapy and counselling fund is designed to pay the survivor's costs for therapy and counselling relating to the incident of sexual abuse that triggered the complaint to the college. While disbursements from the fund should be conditional on a determination of guilt by a disciplinary panel, the coalition believes that the funding should be retroactive to cover all counselling and therapy received as a result of the incident. The coalition recognizes that counselling and therapy will often be required to get the victim to a point where he or she can make a complaint and to prepare the victim for the investigation and disciplinary process. Such treatment should be covered by the fund, assuming that a determination of guilt is in fact made.

On the other hand, the coalition is strongly opposed to the notion that funding should flow even if the panel's determination of guilt is appealed. Whether an appeal is based on fact or procedure, an appeal is an appeal. The ministry argues that appeals can be made on a range of grounds, not just the finding of guilt. The ministry also argues that if a guilty verdict is overturned on appeal, the college could go after the victim for repayment.

If a panel decision is overturned on appeal, it is completely unrealistic to think that any college would try to reclaim the money that had flowed from the fund during the appeal period. Furthermore, our lawyers tell us that it is impossible to try to draft legislation that somehow distinguishes between the types of appeal, other than the basic distinction between law and fact or the merits of an appeal.

The coalition is also very concerned about the fund being used to cover the cost of treatment by unregulated health care practitioners. In the unregulated sector there are few, if any, standards of practice, accountability, and mechanisms or malpractice insurance to cover misadventures. In the unregulated sector, in our view, there is simply too much potential for treatments that at a minimum may be ineffective and at worst will be counterproductive, perhaps further risking the health of the patient.

In the unregulated sector, there's even more potential to encounter sexually abusive behaviour, thus continuing the victimization of the survivor. The government, in its amendments listed in the Consolidated Report dated November 4, 1993, appears to recognize these dangers. One proposed amendment calls for the survivor receiving the funding to sign a document indicating that he or she understands that the therapist or counsellor is not subject to professional discipline. Since these problems of referral to the unregulated sector are acknowledged, we ask, why should Bill 100 allow for referrals to the unregulated sector at all?


Another very serious concern relating to the therapy and counselling fund is how it is to be financed. The coalition has serious reservations about each fund being financed by the members of each college. To us, this represents an unwarranted erosion of the basic principle of government-funded, universally available, no-fault health care entrenched in the Canada Health Act and the Ontario Health Insurance Act that is basic to our system in Ontario.

We're also worried that if financed by additional levies on members, the capacity of each fund will vary widely from profession to profession or that the burden of financing each fund will be felt much more heavily in some professions than others. The larger professions will be able to finance a relatively large fund and the additional financial burden on individual practitioners will be marginal. For the smaller professions, establishing a fund of reasonable capacity will require a much larger individual financial contribution. It is precisely those smaller professions such as mine, massage therapy, that feel the most vulnerable under Bill 100 and that, because of the average income of our members, are least able to sustain the additional burden of supporting the fund.

Our concerns are magnified if the ministry persists in its recommendation that each victim have an absolute entitlement to the full $10,000 if there is no statutory time limit on complaints and if funding continues to flow regardless of an appeal from a panel decision. I tell you in all candour that there are many in my profession who won't bear the additional financial liability and exposure contemplated by Bill 100. They will leave regulated practice and move into the unregulated sector. I suggest that this would be the case for any professional who can continue to practise without much of an adjustment in the unregulated sector. If significant numbers of regulated health care practitioners make this move, we will undercut the basic principles and objectives behind the Regulated Health Professions Act.

In regard to the fund concept as contemplated by Bill 100, we are worried at the evident or perceived conflict of interest of each college determining guilt and controlling disbursements of the fund. We also think that fines paid by practitioners found guilty of sexual abuse should be paid into the college fund, not into the general government revenues.

Finally, and this is a consistent theme for us, we think that funding should be available to cover the costs of counselling and therapy for victims of sexual abuse wherever that abuse occurs in unbalanced power relationships or in trust relationships, not just in the regulated health care sector.

To summarize the coalition's recommendations relating to the fund, we think that there should be a single fund, financed from government revenues; that allocations from the fund should be administered by one independent expert board after a finding of guilt by a college; that funding should be retroactive to the incident of sexual abuse; that the fund should be expanded over time to cover the cost of counselling and therapy for survivors of sexual abuse by all provincially regulated professionals where unbalanced power or trust relationships exist; and that fines should be paid into the fund, not into general government revenues.

That concludes our formal presentation, but let me quickly emphasize three key points: We recognize that sexual abuse is a problem, we're doing our best to confront the problem, and we want to be a partner in the solution.

Legislation alone is not enough. We need ongoing consultation, education and communication which involves victims and survivors, practitioners, associations, regulatory colleges and the broad spectrum of health care consumers. The legislation itself must be open to regular improvement as we learn more about the problem and how to respond. Finally, to work, this legislation must be, and be seen to be, a fair, appropriate and balanced response to the problem and one that preserves the civil rights of both the complainant and the accused.

Thank you for your attention.

The Chair: Thank you for a very thorough presentation. We are tight for time. I will allow one question from each caucus, beginning with Mr Wilson.

Mr Jim Wilson (Simcoe West): Thank you very much for your presentation. One question is not nearly enough to cover all the points. Perhaps I should have time to think of my one question.

There have been some changes since your brief was sent to us, and one of those big changes was with respect to mandatory reporting. You've had a chance to see those in the November 4 document. Were are any of the new amendments of some help?

The Chair: Just so we're clear on what you're referring to, because I'm not sure whether those amendments have been tabled --

Mr Jim Wilson: Is that right?

Mr Paul Wessenger (Simcoe Centre): Yes. That's the one I think you've heard about, the diversion and remediation, where the college has the right to assess.

Mr Jim Wilson: No. Mr Chairman, could I just pass at this time until I can formulate the question? I didn't know we just have one, and I have nine questions written down.

The Chair: I apologize. It's simply the time and trying to make sure we hear from everyone who is slotted in today. I'll come back.

Mrs Karen Haslam (Perth): The trouble is that I have two comments and one question. One of the comments is that we looked at the definition of "harm." May I say I'm a strong person and I come from a strong family, as you do, obviously, and I could probably handle turning to a person and saying, "Get your hands off me, you sleazebag." But there are people out there who come to a doctor in an illness situation, so the definition of "harm" I don't think is the same for someone who may not have as strong a personality as myself or my daughter. That's one comment I'd like to put out.

The other one was the skin-to-skin contact. I've gone to chiropractors and I appreciate the relief and the treatment, but let me tell you, I can tell the difference between skin-to-skin contact.

Pam, you were talking about the referral of counselling services to unregulated. I would like to draw your attention to the victim in this. That victim has come to a regulated person; that victim's trust has been violated. I can see why offering them another avenue would be helpful to them in their recovery, because there was a loss of trust and a distrust of some of those people. If as a victim they want to take counselling at another area, I feel we should allow that. Where else would they go, if they didn't trust the professional they've already been to?

Ms Fitch: I think you will find, or we have found at any rate in our consultations in the 24 health professions, that there has been significant education and training of the health professionals who would be in place to deal therapeutically with survivors.

Mrs Haslam: I'm dealing with a victim's point of view; as a victim.

Ms Fitch: I can appreciate that there might be some hesitation to going to a regulated health care practitioner, but I would hope that under this new legislation there would be greater protection for the individual with a regulated health care practitioner than with someone from whom there is no recourse, no malpractice insurance, no means to follow up on any subsequent abuse, with an unregulated health care practitioner.


Mrs Haslam: But the regulation states that the only criterion was that they were not accused or convicted of that assault.

This is going to be a very difficult committee when the time lines are this short.

The Chair: It is, but I'm afraid as Chair I'm trying to be fair to everyone. Ms O'Neill.

Mrs Yvonne O'Neill (Ottawa-Rideau): That's a very helpful presentation you've just given; you've covered an awful lot. I'd like to ask one question on the mandatory reporting. I want to refer to page 29, "Pursuant to the coalition's proposed amendments, a list of responses of increasing gravity would be set out in the statute." I haven't had a chance to peruse all of this brief, so do you want to say a little more about that and who would make that decision? I haven't had a chance to examine your proposed amendment in this area. I wonder if you could explain a little more about "responses of increasing gravity."

Ms Holstein: If you go into the amendment itself at the bottom of that page and the top of page 30, the suggestions are that it might range from meeting the member to admonish that member, professional to professional --

Mrs O'Neill: That would be within the same profession?

Ms Holstein: Or another profession. We recognize that with uneven balances of perceived power in working relationships among health care professionals, that might be a contentious issue as well. But I would remind you this was a coalition agreement, that it might mean assisting the patient or the client in approaching the practitioner directly, providing them with that support. It might be to advise the patients of their rights to go forward to the appropriate college, how that might be done and what supports are required, or it might mean in the end filing a report with the appropriate college. It starts very simply.

Mr Jim Wilson: The reason it's difficult to phrase a question with respect to mandatory reporting is my reading of your brief and your oral presentation. In this particular area, you're at the other end of the spectrum, as it were, in terms of what you're proposing and what the amended version of the bill now contains. I just want to give you an opportunity to once again try to convince us that your proposed amendments are the way we should go. I'll tell you I have some problems with your proposed amendments on pages 29 and 30 of your brief. It seems to me they're fairly weak, and that's why I say it's the other end of the spectrum from the bill itself.

Secondly -- I'll make it a two-part question -- I don't think the government, to be serious, is going to budge in its definition of "sexual abuse." One of the things they've tried to do is with respect to the "behaviour or remarks" section, which is 3(c), that there can be a different sanction for that. I was wondering if that was of any help. In other words, later on in the bill it says that under that category of sexual abuse, it doesn't mandatorily go to discipline, that there is some flexibility now built into the amended bill. Your comment on both of those, please.

Ms Holstein: In terms of the mandatory reporting, the recommendation that the coalition is making applies to remarks and behaviour only. We're not suggesting that it applies to the other aspects of sexual abuse.

Mr Jim Wilson: So mandatory reporting in (a) and (b), but (c) is --

Ms Holstein: But (c) is a duty to intervene. We don't see that as weakening the bill.

Mr Jim Wilson: Okay. I misunderstood that.

The Chair: Thank you very much for coming before the committee today.


The Chair: We'll move on to the representatives from the Ontario Physiotherapy Association. While those representatives are coming, I'll remind the members of what the subcommittee has discussed. Given the tight time lines, if there is time for one question I will move in rotation among the parties, but there will not necessarily be time for a question by all three caucuses, and I will have to be very strict on that. I apologize, but it's the time. We will begin with the official opposition.

Welcome to the committee. If you'd be good enough to introduce yourselves, please go ahead with your presentation.

Ms Beverley Lafoley: Mr Chairman, committee members, good afternoon. My name is Beverley Lafoley and I am president of the Ontario Physiotherapy Association. I am a licensed physiotherapist practising in Sudbury, Ontario. With me today is Cheryl Kirkness, a physiotherapist practising in a rehabilitation setting in southern Ontario.

The Ontario Physiotherapy Association represents about 2,800 physiotherapists in the province. As a predominantly female profession, we understand the impact of power in relationships, particularly in the health care sector. Physiotherapy is essentially a hands-on profession. Whether assessing or treating a client, we place hands on the patient's body to guide, to stabilize or to produce or to resist movement. This is an essential element of our profession.

We strongly support the development of legislation that will eradicate sexual abuse from the health care system and we want to assist in developing Bill 100 into legislation that will be effective, efficient and capable of empowering victims without compromising the rights of the innocent.

Bill 100 will have a direct and major impact on the practice of physiotherapy in this province. As a result, the Ontario Physiotherapy Association took a major role in organizing the ad hoc coalition of regulated health care practitioners and has cooperated in the development of a response to Bill 100 that has been presented to you today.

It is not our intent today to repeat the coalition's analysis or recommendations but to confirm our support for those recommendations. However, we would like to identify certain issues raised by Bill 100 of particular concern to physiotherapists in our practice. Cheryl will outline some of those concerns.

Ms Cheryl Kirkness: First, my apologies for the voice that's coming out of this body.

In terms of the first of the concerns, the definition of "sexual abuse" as drafted causes a great deal of concern for physiotherapists. The language, particularly that in clauses 3(b) and 3(c), is ambiguous and open to considerable interpretation in the practice of physiotherapy. As we understand it, the definition means that any touching or remarks of a sexual nature could be deemed sexual abuse. There are many situations where a physiotherapist, in providing appropriate, accepted and effective treatment, is involved in activities which could be interpreted as touching of a sexual nature. Let me give you a few practical examples of these situations.

Consider a female physiotherapist assisting amputees in preparing for and learning how to use a prosthesis, including appropriate methods for putting the prosthesis on. When the patient is a male above-knee amputee, this may involve handling of the male genitalia to ensure that they are not pinched in the prosthesis.

Consider the example of a male physiotherapist treating a female patient with a chest problem. In providing chest physiotherapy to a patient, physiotherapists may use percussion over the chest wall. This may require that the physiotherapist's hands repeatedly come in contact with the woman's breast, the necessary location for percussion if the treatment is to be effective.

When treating a patient, male or female, with a back problem, palpation of the symphysis pubis, which is located just above the genital area, may be an important component of the initial assessment.

In fact, many of our manual therapy techniques and neurological facilitation techniques require the physiotherapist to use her hands, arms and sometimes her body to stabilize a particular area in order to provide the most effective treatment.

In all of these cases, the physiotherapist could technically be charged with sexual abuse because she or he has used touching of a sexual nature. Alternatively, another professional unfamiliar with physiotherapy treatment procedures could feel compelled to file a report.

One of the things we learned in working with the coalition and in meeting with survivors is how easy it is to misunderstand and misinterpret hands-on treatment. The consequences of honest misunderstandings are grave and are of considerable concern to us.


I also note that we have concerns about the definition of "remarks of a sexual nature." It is a normal practice in physiotherapy to provide advice regarding positioning for sexual intercourse as part of the comprehensive treatment of an individual with back pain following hip or knee surgery etc to prevent unnecessary discomfort or injury. For the patient with a significant disability, such as the spinal-cord-injured patient, concerns regarding sexual relationships are extremely important and are frequently raised with the physiotherapist. In all of these situations there is a potential for misunderstanding.

We do not want legitimate concern on the part of a physiotherapist regarding the potential for a complaint of sexual abuse to result in the modification of a treatment approach to something less complete or appropriate. We also do not want charges or reports of sexual abuse arising out of honest misunderstandings to absorb college review time when they should be dealing with genuine and serious offences.

The Ontario Physiotherapy Association supports the concept of "exploitation" as a necessary component of the definition of "sexual abuse." We believe that this concept will serve to prevent inappropriate cases, such as the examples cited, from being reported while acknowledging that sexual offences can and do occur in any of the three categories of definition.

The second issue we would like to discuss is the approach to mandatory reporting as outlined in Bill 100. The realities and complexities of the health care environment in which we practise lead us to believe that mandatory reporting of all types of sexual offence will not be effective or workable. We support the recommendations outlined in the submission of the Ad Hoc Coalition of Regulated Healthcare Associations on this issue. We would like to add a few comments.

We are concerned that as a hands-on profession, we will be particularly vulnerable to reports by other health care professionals who do not understand and cannot realistically be expected to understand our treatment procedures. The examples I use to illustrate our concerns with the definition apply equally in this context.

We are concerned with physiotherapists being required to report when the patient doesn't want the report to go forward. Doesn't this simply perpetuate the powerlessness of the victim and his or her victimization by the system? We are concerned about what our college will do with these reports and the potential for huge variations from college to college.

Assuming that the definitions are clarified, the Ontario Physiotherapy Association supports mandatory reporting as a necessary response to sexual violation. However, we believe that the concept of duty to intervene as proposed by the Ad Hoc Coalition of Regulated Healthcare Associations is the most appropriate way of dealing with situations involving the use of language and behaviour and touching.

We believe that this will ensure that the issue is addressed, appropriate reports and complaints go forward to the college and the college will focus on the complaints where the victim most needs its intervention.

Ms Lafoley: As I noted earlier, the commitment of the Ontario government to legislate against sexual abuse in an unbiased and effective manner is strongly supported by the members of the Ontario Physiotherapy Association. Abuse or exploitation in an unbalanced power or trust relationship is not to be tolerated and must be deterred.

As a predominantly female profession, we are keenly aware of and sensitive to the issues related to sexual offences. We agree that there is no place in our profession for physiotherapists who exploit relationships of trust or the vulnerability of their patients by being sexually abusive.

We agree that professionals must take the responsibility to report incidents of sexual abuse. We agree that severe penalties are required to deter sexual abuse by professionals. We agree that the disciplinary process needs to be streamlined to make it more effective and more accommodating for the victims and survivors.

While we strongly support the principles addressed in the bill, we fear for its potential implications on the caring and physical components of our practice if the bill passes as is.

With an issue of such scope and complexity, it is essential that legislation strike an appropriate balance in safeguarding the rights of both the accused and the accuser. It is essential that legislation encourage professionals and victims to report such abuse. However, it is also essential that the legislation is workable in our complex health care environment.

We have presented our concerns to you. We ask that you give careful consideration to the difficult but necessary changes that need to be made to this legislation to ensure its effectiveness.

Mrs O'Neill: I want to go back to page 4, which you didn't bring forward in your actual presentation, but which I think is very important because at one time in the legislation we were talking only about reporting those people for whom we could establish a name or an identity. You've stated a very practical problem within the hospital setting. I think it would be important that you put some of that on the record that you have not been able to give us, because I really do think identity is important in this issue of mandatory reporting. Could you say a little bit more about page 4?

Ms Kirkness: Certainly, I'd be happy to if the voice holds out. A real concern we have, for instance, is identified by an example in the acute care hospital. As it stands right now, for a practising therapist going up on the wards of an acute care hospital, the patients often interact with you because you spend a fair bit of time with them. In doing that, they're often telling you about what's happened during the day, particularly if it occurs with some difficulty earlier in the day regarding another practitioner. That person might not be identifiable. If this is a concern regarding sexual abuse, it would be my responsibility as a physiotherapist to try and find out who that was, and that will lead to a great deal of difficulty.

Currently, working in a rehabilitation setting, the number of nurses who are involved with the patients I treat are much fewer than in an acute care hospital, and in discussing details regarding a situation with one nurse, patients still have difficulty identifying to me who that nurse is. So there remains that problem.

Likewise, I am often called "nurse" or "doctor" if I go up on a ward. Obviously, that's a misinterpretation, but if we all look the same in a lab coat, it's an understandable misinterpretation. You have to be cautious about inappropriate reports being made against the wrong professional with the best of intentions by both the patient and another professional involved.

The Chair: Thank you very much for coming before the committee this afternoon.


The Chair: Perhaps I could call on the representatives from the Ontario Psychological Association.

Mr Jim Wilson: Mr Chairman, as the presenters are coming forward, I want to state on the record that the committee hearings being crammed in such a short period of time is really quite difficult, given that we're not able to explore issues as fully as they should be. I just want to express my disappointment at this time.

The Chair: Thank you.

Welcome to the committee. Perhaps you would be good enough to introduce yourselves for Hansard.

Mrs Haslam: Mr Chair --

The Chair: I'm sorry, we really must move on. Please introduce yourselves and go ahead with your presentation.

Mrs Haslam: This is a clarification.

The Chair: Okay. Let's let them and we can come back. Please go on.

Dr Ruth Berman: Mr Chairman and members of the committee, I'm Ruth Berman, executive director of the Ontario Psychological Association. With me are Drs Iris Jackson and Carole Sinclair. Dr Jackson is past president of our association. She is in full-time, independent practice in Ottawa and is the former chair of our ethics and policy committee. Dr Sinclair is director of treatment services at the Dellcrest Children's Centre in Toronto. She is a member of our current ethics and policy committee and is the coauthor of the Canadian Psychological Association code of ethics, our national code.

Thank you for this opportunity to speak to you about Bill 100. The Ontario Psychological Association is the professional association that represents the psychology profession in Ontario. Our approximately 1,400 members work in a variety of practice settings, providing a range of diagnostic, therapeutic and preventive services.

As a professional community, we have long been concerned about the sexual abuse of clients by psychologists and other professionals. We have been active in studying the problem, in educating ourselves and the public about the problem, in treating those who have been abused and in encouraging the development of ethical codes and standards to prevent such abuse from occurring.

We have appended to our written submission, for your information, the current ethical and relevant standards of our members, the research findings related to the incidence and reporting of sexual abuse by psychologists, as well as a bibliography of the studies undertaken by psychologists in this problem area.


Our profession well understands the devastating impact of sexual abuse.

Many of our members work with clients who have experienced sexual abuse in their lives. We are totally committed to a policy of zero tolerance and support the need for effective legislation to prevent the occurrence of sexually abusive behaviour by professionals.

The Ontario Psychological Association is one of the signatories to the joint submission of the coalition of regulated health care professions. We have, however, prepared a separate submission in order to highlight and focus on the issues of greatest concern to the psychology profession. Dr Sinclair.

Dr Carole Sinclair: We're aware that you do not have an easy task in considering Bill 100. The debate concerning this bill has often been impassioned, as sexual abuse by professionals evokes powerful emotions. Most of us experience shock, anger and even fury at professionals who abuse their power in this way.

As members of a discipline that contains perpetrators of sexual abuse, many psychologists also experience shame, disbelief and great sadness. However, we believe it's important to balance these strong emotions with wisdom and common sense in order to develop legislation that will protect the public not only in the short run, but in the long run as well.

I'm going to speak briefly to three items in Bill 100 which we believe have been driven primarily by emotion and which we consider quite unwise in the development of the best possible legislation. Dr Jackson will speak briefly to four additional items.

The first of my items concerns the inclusion of the group of offences called sexual impropriety under the general label "sexual abuse." Although sexualized, non-touching behaviour and remarks in a professional relationship are offensive and seriously wrong, their inclusion under the label "sexual abuse" distorts the generally accepted use of the term "sexual abuse," and at the same time tends to minimize for both the public and professionals the horrendousness of those offences which are included under the label "sexual violation and sexual transgression" in the bill.

Our brief suggests that the more neutral term "sexual offence" be substituted for the term "sexual abuse" wherever it appears in the bill and also suggests that there be a clear differentiation between the three levels of offences as set out in our written submission on page 3.

The second of my items concerns the requirement that all levels of offence be reported to the appropriate college, regardless of the client's wishes. Although Bill 100 protects the client in so far as it does not require the name of the client to be revealed unless he or she gives permission, many of our members are concerned that clients who have experienced sexual abuse by professionals will be unwilling to seek treatment if they know that a report will ensue automatically, regardless of their wishes.

Some clients need time and counselling to sort out their feelings about the professional involved and to understand that such a report is important, both to protect others and for their own healing process. Some clients have told us that they feel revictimized if the process of reporting moves more quickly than they feel ready for.

Ideally, the first step is to encourage survivors themselves to make a complaint, and if a survivor is unable to make a complaint, the next choice would be for the psychologist to make a report with their consent. In spite of our misgivings about this aspect of mandatory reporting, we accept the need to protect the public from the most serious offences and, as such, our brief supports mandatory reporting of the two most serious levels of sexual offence by professionals.

However, we do not support mandatory reporting of the level of offence called sexual impropriety. Instead, we believe that legislating a duty to intervene, as set out on page 5 of our brief and also in the brief submitted by the coalition of associations, is more appropriate, will be more effective and is more immediate in dealing with this level of offence. A duty to intervene is part of the current ethics code for our members and is included on page 15 of our brief. For sexual misconduct, we would welcome the added statutory authority given by the inclusion of a duty to intervene in Bill 100.

The third and last of my items relates to the lack of an exception to mandatory reporting for health care providers who treat professionals who engage in sexual abuse. Psychologists represent a significant proportion of health care providers who treat such professionals and who are competent to assess whether they pose a risk to society by repeating their misconduct. We know that it is the somewhat more responsible and remorseful and insightful professional who seeks treatment on their own. Yet by the lack of an exception to mandatory reporting for the health care providers who treat them, these very professionals will be discouraged from seeking treatment that is aimed at helping to reduce the likelihood of their reoffending or of their offences becoming more serious. A preventive early intervention tool will be lost.

We urge the government to amend the bill to exempt treating professionals from reporting except in circumstances in which the treating professional judges that there is a risk of continued or repeated abuse.

Dr Iris Jackson: I'm going to be speaking about non-party participation, or intervenor status.

The Ontario Psychological Association is sympathetic to any survivor's desire to be actively engaged in the complaints and discipline process. They have a right to tell their stories and to have impact on the process that ensues from their complaint of abuse.

We think that Bill 100, as initially proposed, fell short in that it did not guarantee survivors the opportunity to address the discipline committee panel after there is a finding of guilt, and we support the amendment to section 11(3) of the bill that has been tabled by the government. Impact statements will be beneficial to the survivors and will ensure that the panel has a complete understanding of the harm caused by the abuse.

However, we oppose non-party participation prior to a finding of guilt. It poses too great a risk of procedural injustice to members of the college, which translates into increased risk of successful appeals and judicial reviews. It may well be a hollow right as well because many survivors may be unable to afford legal representation at the hearings.

Furthermore, Bill 100 does not address an acute problem that arises at hearings when the complainant's past psychological or psychiatric treatment records, where they exist, are introduced in evidence. It is understandable that survivors would demand the right to participate in the hearings to oppose the production of these records. We believe the potential for damage to survivors calls for rules that records cannot be produced except where the effect of non-production on the hearing would be more detrimental than the negative effect of production on the client. Page 7 of our written submission lays out the rules we recommend when considering whether such patient records should be introduced into the discipline hearing.

The program for funding counselling: Psychologists, more than most, are aware of the financial obstacles that prevent many people in Ontario from obtaining mental health services, particularly psychotherapy. For many years we have been trying to persuade the government to adopt funding and service models that would make psychological services more widely available, but we have many objections to the funding proposals in Bill 100.

Sexual abuse is a societal problem. Only a few of the survivors will ever benefit from funding. Therapy will be inaccessible to many survivors, including people abused by unregulated professionals.

Second, shifting the financial burden to the professions means that financial resources will continue to be in short supply. It is imperative to include provisions in the bill to ensure that these resources are used most effectively.

It is very important to insist that an assessment of a survivor is undertaken to determine the nature and goals of counselling. It is also important to determine that the therapist selected by the survivor is competent and has a treatment plan in mind. We also wish to point out that we are aware of no other funding program, including OHIP, where entitlement is absolute, regardless of therapeutic necessity.


Finally, while we agree that everyone should have the right to choose his or her own therapist, funding should only be provided to therapists with recognized credentials. It is irresponsible to spend scarce resources on therapies of no proven value and on practitioners who, because they are unregulated, are accountable to no one. For these reasons, we urge the government to restrict funding to regulated health professionals, and if this is not possible, then to develop a list of acceptable categories of therapists. These lists could be included in a schedule to regulations.

Bill 100 includes an amendment that will empower the discipline committee panels to order members of colleges who have been found guilty of professional misconduct or incompetence to pay the college's investigative hearing and legal costs. This amendment goes far beyond the authority in the actual award costs to a member who is acquitted. That member may only be awarded costs if the panel finds that the proceedings ought never to have been commenced. Apart from this imbalance, we are very concerned that the threat of a substantial cost order may have the effect of coercing innocent practitioners into pleading guilty. At the least, we oppose an unrestricted authority to award costs and we recommend that the maximum amount of the order be fixed by regulation.

Finally, sexual offences are a form of psychological harm. Nothing in Bill 100 or the RHPA addresses psychological harm in the same manner that physical harm is addressed by section 30 of the RHPA. Sexual abuse statutes enacted by most USA jurisdictions cover abuse by all kinds of psychotherapists, not just regulated ones. It is impossible for us to understand why the government of Ontario is taking no action in this area. We recommend that a provision be added to Bill 100 to prohibit any person, regulated or unregulated, who is providing treatment or health advice to an individual from sexually abusing that individual in the course of providing such treatment or advice.

In conclusion, we would like to affirm the Ontario Psychological Association's commitment to zero tolerance. This afternoon we have touched on issues of great concern to psychologists. We hope that you will also study our written submission. We have tried to propose workable solutions to the flaws we see in the bill and we ask that you give them serious consideration.

Mr Jim Wilson: Thank you for your presentation. I agree with some of your concerns or at least flag them as concerns, particularly in the area of the treating professional having to report on the patient practitioner, as it were. You mention, and it's the third or fourth brief I've read, where that report to the college may be taken as tantamount to a confession by the named professional. That really does worry me.

Since I only get one question, how are we going to improve the bill so that there's some direction given to the colleges on how to handle these reports? I think the bill attempts to have a bit of a screening process, but none the less, a report by a professional is rather a serious matter.

Dr Iris Jackson: I think with regard to psychologists, one of the things that is important to recognize is that, as a diagnostic profession, we're in a position to assess whether the person we are seeing can be rehabilitated. I think it's reasonable to leave some level of discretion to the treating professional whether or not to report to the college. As you point out, there's a great deal of machinery in place, once the report goes in, that the college will have to take very seriously any report by a treating professional.

Mr Jim Wilson: Your suggestion was the exception that there not be mandatory reporting unless there is a belief that the abuse will continue or be immediate.

Dr Iris Jackson: That's right. If there's a chance that the professional in treatment is going to continue to abuse, then we have both the ethical and I think legal responsibility to report to the college.

The Chair: I'm sorry that we're out of time, but thank you very much for your submission and also for the written submission.


The Chair: I would next then call the representatives from the Coalition of Regulatory Colleges. Could I just indicate to members that there is a vote being called. Although it is 27 minutes away, it's my intention to try to go on as best we can, and again I remind those who are here we are going to do our very best to hear from everyone. We may have to go up for a vote or several votes and we will come back. Ms Haslam, you wish to make a short comment.

Mrs Haslam: No, as a point of clarification about the timing. The reason we're having such a difficulty is because we were scheduled to start at 3:30. Due to some delays in the House, we didn't start until 4 and you're trying to push them all in and I understand that. But looking at the schedule ahead, I just wanted to, as a point of clarification, say, are we going to have this problem over the next few days or is it just because the delays are here today?

The Chair: Hopefully, what happened in the House today won't happen tomorrow or next week. I can't speak to that, but we will certainly honour the time for everyone.

Welcome to the committee. Perhaps you would be good enough to introduce yourselves, and then please go ahead.

Dr Catherine Yarrow: Thank you. Good afternoon. My name is Catherine Yarrow. I am the acting registrar for the Ontario Board of Examiners in Psychology. With me today are Sharon Saberton from the Board of Radiological Technicians, Jane Rogers from the Transitional Council of Dental Hygienists and Janet Ecker from the College of Physicians and Surgeons of Ontario.

Our coalition represents 16 regulators of the health professions in Ontario. We are the ones who will have to implement Bill 100. We are the ones who receive the complaints and investigate reports of sexual abuse. We are the ones who discipline members of our professions in matters relating to sexual abuse.

The coalition of health regulatory colleges does support Bill 100 in principle. The coalition supports zero tolerance. However, our mandate in protecting the public requires that we ensure that we are able to do our jobs effectively in conducting discipline and professional regulation, and our concerns are that Bill 100 in its present form is not practical and workable and that there are some flaws which will prevent our effectively carrying out our mandate.

Today we have chosen to speak only to two issues in the bill, although you will see from our written submission we've addressed others. I'll ask Sharon Saberton to begin to speak about the definition of sexual abuse in the bill.

Ms Sharon Saberton: The definition of "sexual abuse" will be used in two ways: number one, to determine sexual abuse for discipline purposes, and to tell practitioners what they must report. Because a failure by a practitioner to report sexual abuse can result in a $25,000 fine, the definition must be clear. Even responsible practitioners will be confused about what to report if the definition is imprecise. The results could be that, number one, no one will report anything and the perpetrators will continue to be free, or everyone will report everything and the perpetrator will still go free in a flood of paperwork.

The government has recognized this concern and has suggested that only behaviour or remarks that are demeaning, seductive or exploitive be reported on a mandatory basis. However, the words "demeaning," "seductive" and "exploitive" are subjective and may not provide enough guidance. Perhaps a better alternative to the ministry's proposal is set out in our submission and on the sheet on page 2 that we have handed out.

For the purposes of the definition of "sexual abuse," the phrase "sexual in nature" should not include touching, behaviour or remarks of a clinical nature appropriate to the services provided. This clarification provides an objective test that distinguishes clinical remarks in sexual component such as sexual-history-taking during the course of treatment from improper remarks that ought to be reported. This test is also one that most practitioners would understand and more readily report.

Now I'd like to turn it over to Jane Rogers to talk about our second major issue.


Ms Jane Rogers: The fund is of major concern to the coalition. We agree that survivors may need therapy and counselling and that some may require assistance to obtain it. The coalition also agrees that it is the responsibility of each college to assist complainants to come forward and to proceed through the disciplinary process.

However, the coalition is fundamentally concerned about whether colleges can or should provide or administer a funding program. No matter how fairly and effectively the colleges administer the fund, the public will always see a conflict between the body determining guilt and that same body having to give money out based on the determination.

The mandate of the colleges is to regulate and discipline their members; it is not to provide moneys for health services to consumers who have been harmed. That is the role of the courts, insurance and the Ministry of Health.

The coalition has many additional specific concerns that are outlined in our submission. For example, the coalition is concerned that the financial burden of this fund will jeopardize the survival of many colleges, some of which can only sustain operating budgets of less than $150,000.

Also, many unregulated therapists are not accountable to any public authority for their conduct. While we acknowledge the survivors' desire to chose their therapists, we are concerned that they will not adequately be protected.

The members of the coalition would like to thank you for taking this time to hear our submission. We purposely kept it short so that we would be able to answer some questions, and we'd be happy to take them at this time.

The Chair: Thank you very much. That may allow us a couple of questions. We'll begin with Ms Haeck, who has been patiently waiting.

Ms Christel Haeck (St Catharines-Brock): Yes, I have been patiently waiting. Actually, I have a great many questions. I'm one of the two members sitting on this committee who went through the joyful process of RHPA, so I have many recollections of the range of comments you're making. Some of them have remained with me in an almost intact state, so I find interesting your comments around touch and harm. But I did want to raise the point of the sexual impropriety that you raise on page 2.

My major concern is that we have in our midst a range of people who may be perpetrators of a type of sexual impropriety which frequently could be seen in some sense as locker-room humour, which someone who is a vulnerable person would not be in the position to respond to. This is just sort of the normal course of action, and it does in fact perpetrate harm on that person's self-confidence and how they view themselves.

As you describe this as an abuse, it is, to my mind, minimized. I feel that the way the ministry has put it together at this point provides really a much more appropriate method. I would be interested in any further comments you have to make.

Ms Saberton: Certainly it is recognized that remarks can be just as painful and perhaps as damaging as the other types of sexual transgression. What we were trying to clarify was the issues around the difference between the appropriate clinical nature of remarks and behaviours so that it is clearer to define what is correct and what is incorrect.

Dr Yarrow: The focus was to be on what is appropriate clinical practice. There are times where one may have to deal with sexual issues. The intent was not to tolerate remarks that were inappropriate or not clinically required and which could be harmful; it was really to try to give clinicians a clear means of distinguishing whether one sexual remark or comment or behaviour was relevant to the practice and others are not. We didn't want to create a landslide of mandatory reports which may have been unnecessary. At the same time, it still allows for the recognition that there are certainly types of conduct of this sort that are unacceptable and inappropriate.

Ms Janet Ecker: It also makes prosecution a bit more difficult if you use words like "demeaning," "seductive," or "exploited," in terms of trying to prove that in a discipline context, where the wording we are putting forward we think will assist us in that regard.

Ms Haeck: I guess I'm concerned in that I consider myself a consumer of the health care system, although as a result of my schedule I may not be looking after myself as well as I should be on occasion. But if I am, say, visiting a gynaecologist, there is a range of concerns I would have in the kinds of clinical comments. As someone who has a master's degree, I am probably reasonably able to understand the difference between a clinical comment and one of a sexual nature -- not to suggest that a vulnerable person in all instances would be. I think the basket that basically falls into in the current legislation is such that it's the persistence, not just the occasional remark. I've seen my gynaecologist for the last 20 years. The way we might discuss something might be different from someone you see the first time. We have to develop some sensitivity and sensibility, but I think we're all aware that there are those practitioners out there who use that as a regular course of practice.

Ms Rogers: What you have to remember with this mandatory reporting of remarks is the fact that it's mandatory. For instance, as a dental hygienist myself, if I happen to be walking by an operatory and hear something and don't report it, someone else can say, "That hygienist heard that remark and she didn't report it." I am then subject to a $25,000 fine.

What we're trying to say is that it has to be understandable for people to realize what they have to report. If it's a very vague thing, people will either report everything they hear or they'll start to close their ears and say, "No, I didn't hear it."

The Chair: We have time for one more question, and then we're going to have to break to go to the House.

Mr Jim Wilson: I agree that the final bill is quite a bit different from the CPSO task force recommendation with respect to funding of the survivors' fund or the therapy and counselling fund. The final bill means the government essentially gets rich off these fines, that it gets the $35,000 fines, and your members bear the costs of the therapy and counselling for survivors. This whole discussion was sold to the public quite differently, so I'll give you an opportunity to comment on that.

The government tells us it is absolutely impossible, though I do recall in its opposition days it was quite possible, to designate funds like these fines to go back into the therapy and counselling fund. They're now telling us that's absolutely impossible, and I want you to comment on that.

Dr Yarrow: Our main concern was that we be realistic about what can and cannot be done. We're not denying that there's a need for individuals who have suffered abuse at the hands of providers to have supportive counselling and therapy, but there certainly is a concern that it's not realistic or practical to anticipate that the colleges can absorb the cost or that their membership can absorb the full costs, particularly if there is multiple abuse; as many of us know from experience, if you find a practitioner who has abused, it's not uncommon to find that there has been more than one client who's been the subject of abuse. Our concern is that we look for a means of funding the therapy which is fair and equitable and achievable as well. We're not convinced that the proposal in Bill 100 is the best way to accomplish that.

The Chair: At this point, I want to make sure I can allow the next three presenters their full time uninterrupted. For that reason, while there's approximately --

Mrs O'Neill: Then can I ask a supplementary on that one Mr Wilson just asked?

The Chair: You may ask a supplementary.

Mrs O'Neill: I'm quite interested in your alternatives to the fine. I want to ask too, will the individual doctors just have to increase their liability insurance? Could you say something about those kinds of things?

Dr Yarrow: The notion of an insurance scheme was one possible alternative. As you know, the goal of that proposal was to put the funding and its administration at arm's length from the college, to obviate the clear public perception of a conflict of interest, where we'd be on the one hand making a finding of discipline which is going to cost us money a few moments later. That was the proposal for that. It would, if it were conducted in that way, necessitate an increase in liability insurance. There are some carriers willing to look at providing that, and naturally they will just charge us whatever it costs to provide that.

The other things we're recommending, of course, were broader-scope issues which other individuals have spoken to earlier today; that is, to look at the broader problem of sexual abuse and the need for funding for therapy for victims of sexual abuse in relationships of trust on a broader scale. That would involve creation of support groups, and regulated professionals, among others, having fines and levies contributing to the funding for those types of programs, or to identify specific counsellors who would be well trained to deal with the victims of sexual abuse, again across the board and not just specifically for clients of regulated health professionals who've been abused.

Mrs O'Neill: Much more all-embracing. Thanks.

The Chair: Thank you. May I just say, before we adjourn, the Ontario College of Audiologists and Speech-Language Pathologists, the Ontario Chiropractic Association and the Board of Directors of Chiropractic, we are approximately 10 minutes from the vote. We will return here as soon thereafter as we can. We will do our very best to make sure everyone is heard. This committee stands adjourned until the call of the Chair.

The committee recessed from 1742 to 1757.


The Chair: Good afternoon; it being before 6, I will continue to talk about the afternoon. Our next witnesses are the representatives from the College of Audiologists and Speech-Language Pathologists of Ontario, if you would be good enough to come forward. Thank you very much for waiting for us. We have a copy of your submission. If you'd be good enough to introduce yourself, then please go ahead.

Ms Barbara Meissner Fishbein: My name is Barbara Meissner Fishbein. I'm a speech-language pathologist. With me is Isobel Manzer, who is the registrar of our soon-to-be-regulated college, and before that she was an audiologist.

We'd like to say at the outset that we have strong support for the intent of Bill 100 and strongly agree with the philosophy of zero tolerance for sexual abuse. The other thing we'd like to point out is that we did participate in the submission you heard from the Coalition of Colleges and Transitional Councils and have adopted those positions as our own. What we'd like to do this afternoon is outline a few of the areas that are of particular importance to us.

Regarding the definition of "sexual abuse," what we'd like to do is just reiterate the coalition's position. We would suggest leaving the definition as it is currently written in Bill 100, with the addition of a subsection which defines "sexual nature" as not including "touching, behaviour or remarks of a clinical nature appropriate to the service provided." We refer you to the coalition rationale and would adopt that as our own.

We'd like to turn now to the issue of mandatory reporting. We support the ministry proposal to remove cross-professional mandatory reporting of incompetence, incapacity and misconduct. We also support mandatory reporting of physical sexual relations and touching, as is outlined in Bill 100.

We would also like to say that we can support mandatory reporting of remarks and gestures if the definition that we discussed is adopted.

As well, it is our belief that mandatory reporting to an alleged offending member's college is but one option. In situations where an alternative dispute resolution mechanism exists, referral to this process may quickly and effectively deal with the offence.

If the alleged offender has previously been referred to an alternative dispute resolution process, then a report to the college would be mandatory.

As well, if one of these mechanisms was not available to one of our members, again they would be obligated to report to the alleged offending member's college. We do not feel our membership should be fined for failing to make a report to a college when the issue was raised through an ADR mechanism and dealt with quickly and appropriately.

We'd now like to discuss the issue of non-party participation. We have had the opportunity, through the consultation process undertaken by the ministry, to hear from both existing colleges and survivors.

We concur with the arguments which state that discipline hearings will become unmanageable with any further extension of non-party participation. We're concerned that granting party status to survivors would not increase the number of successful convictions.

In fact, our fear is that the opposite may occur. The added complexity to the process may lead to errors in law which could be used to overturn findings even though a member may be factually guilty. This would add a significant demand to our already limited resources, being a newly regulated college.

In addition, we also feel the arguments put forward by the survivors for party status deserve serious consideration.

CASLPO would suggest that the section regarding non-party participation, 41.1, stand as written, with the addition of a subsection which would exclude evidence which is called, if a survivor has no status, if the sole purpose of that evidence is to discredit the survivor. If the exclusion of such evidence should hamper a member's defence, the survivor should be granted intervenor status under section 41.1.

The survivor as well, in any case, should be allowed to attend the entire hearing and provide a written impact statement at the penalty stage.

In addition, and most importantly, we feel that the survivor needs to be provided with support from the time a complaint is made until the disciplinary hearing has reached its conclusion. This would provide the survivor with knowledge of their rights and options throughout the process and could include access to independent legal counsel.

Such an advocacy service could come from an independent agency, and we'll discuss that agency more when we talk about funding. This could be specifically set up to assist survivors of sexual abuse. The service could also provide the counselling required. Again, we'll discuss that.

I'd like to turn now to the issue of funding. We would like you to recognize that there are problems with the funding section the way it is currently written. You've heard about the problems regarding having unregulated therapists provide therapy for survivors. There would also be an undue financial burden placed on small and newly regulated colleges such as ours.

What we would like to propose is the creation of an independently run service agency which would be devoted, among other things, to the provision of advocacy, as we discussed before, legal advice and counselling to victims of sexual abuse by regulated health care professionals. Such an agency could become a centre of excellence in the area of supporting and treating survivors of sexual abuse.

It could encompass a number of functions, including education and advocacy that survivors require in the initial stages of making a complaint and throughout the hearing process. The type of therapy provided could be varied to meet the individual needs of survivors.

If a survivor chose to receive therapy from an independent, unregulated therapist, criteria could be established and adherence to the criteria monitored to ensure that the therapist had the required skills.

It could allow for the development of survivors' support groups, which have been shown to be an effective method of assisting survivors. It might also oversee professional education and research in the area of treatment of survivors of sexual abuse.

The sources of funding for this agency could include dedicated funds from all of the colleges, fines imposed on guilty practitioners and recovery of OHIP and other fees billed by sexual abusers, as well as funding from government, granting agencies and private and corporate donations. Colleges might be assessed on the basis of their total annual budget to ensure that no college faces significant hardship in supporting therapy for survivors of sexual abuse. This would give the colleges financial responsibility without the administrative responsibility, thus ensuring fair and impartial provision of therapy.

The independently run service agency approach would allow for a free choice of therapist, with a monitoring mechanism to ensure that the proper services are being provided. It would address many of the concerns that survivors have expressed regarding non-party status. Most importantly, it could assume a leadership role in working towards the prevention of sexual abuse, and it would provide a strong expression for the concept of zero tolerance of sexual abuse.

We'd like to thank you for listening to our submission this evening and welcome any questions.

The Chair: We have time for a question.

Mr Jim Wilson: There's one line on page 5 at the bottom of your written submission that's somewhat disturbing. It says:

"It would be in CASLPO's financial interest to limit our investigations to find as few victims as possible, thereby potentially leaving many other survivors without resources for counselling. Under this scheme, colleges will be undermotivated to pursue convictions of members for sexual abuse."

Earlier in that paragraph you talk about that at the time of proclamation, you're likely only to have just over $10,000 in the survivors' fund.

Ms Meissner Fishbein: That's what we're required to have, which is the cost of funding one survivor.

Mr Jim Wilson: None the less, if the funding section isn't changed, you stick by the statement that the colleges might find themselves undermotivated?

Ms Meissner Fishbein: I think the issue is that an abuser may have more than one survivor. If we are obligated to provide the funding for every survivor who comes forward, it may not be in our interests to look very hard for other survivors.

Mr Jim Wilson: I'm not sure how much help we're going to be able to be in terms of introducing amendments, given that we were just up in the House and some of the opposition members look like we have long faces. We had presented to us a time allocation motion, which means this committee will be very limited in what it can do, and debate in the House is to be limited to something like two hours on this particular bill. So there's a little bit of news for you.

The Chair: Thank you very much for coming before the committee today.


The Chair: I'd like to call on the representatives from the Ontario Chiropractic Association, if they would be good enough to come forward, and following them the last presenter today will be the Board of Directors of Chiropractic. Once you're settled, please introduce yourselves for members of the committee and for Hansard and then please go ahead.

Dr Janice Hughes: Good evening. My name is Janice Hughes and I'm here representing the Ontario Chiropractic Association. On my left I have Dr Deborah Kopansky-Giles, who is also a director, and on my right I have David Chapman-Smith, who is our legal counsel.

The Ontario Chiropractic Association is a voluntary professional association that represents over 80% of Ontario's 1,750 chiropractors. The chiropractic profession, like massage therapy, is a hands-on profession.

We have followed the development of Bill 100 closely and we have been an active participant in the ministry's consultation process. We support all the fundamental goals of the proposed legislation. However, we feel that the pendulum has swung too far, that various aspects of Bill 100 are ill-advised and unfair to health professionals and that a number of amendments are required to make the legislation successful in achieving its stated goals.

The OCA is a member of the Ad Hoc Coalition of Regulated Healthcare Associations and has participated in all its deliberations, including a series of joint meetings with representatives of survivor groups, health care associations and colleges and the Ministry of Health. The OCA endorses all of the recommendations in the coalition's submission to this standing committee, including recommendations on the definition of "sexual abuse," mandatory reporting by professionals, intervenor status, the therapy and counselling fund and the grafting of Bill 100 onto the Regulated Health Professions Act.


In the limited time available today, we wish to highlight two issues of particular concern to our members:

Our first issue, the source of funding for therapy and counselling fund: Bill 100 proposes a levy on health providers. The suggestion that compensation for injury or loss caused by one health professional's illegal acts should be the responsibility of that professional's colleagues and part of the burden of self-regulation is wrong. It is not only wrong in principle but also manifestly unjust.

Our recommendation is that we support the coalition's recommendation that there should be a consolidated fund funded through general revenues.

We also recommend that all fines and orders for costs imposed on health professionals found guilty of sexual offences with respect to patients be paid into the fund.

Our second issue today is the definition of "sexual abuse." The present definition is inappropriate for the various reasons explained in the coalition's submission. There should be three categories of offence as originally proposed by the government.

Two major areas of concern are to ensure that the new system of reporting actually works in practice, and the unfairness to health professionals of having all allegations of sexual misconduct open to the public report as sexual abuse. In this submission, the OCA will seek to illustrate the latter of these points.

Our recommendation is that the OCA agrees with the coalition's recommendations.

In the area of the therapy and counselling fund, the therapy and counselling fund proposed is in fact a compensation fund. This is what it was first called by the ministry, and victims and survivors have consistently pressed for other categories of compensation from the fund. The OCA summarizes its positions as follows:

(a) A patient relations program, aimed at prevention of sexual offences in the professional setting, is clearly a valid part of self-regulation. A profession should bear that responsibility and cost.

(b) So is the bringing of disciplinary proceedings to determine whether or not a member of the profession has been guilty of misconduct.

(c) Compensation of a complainant, in the present case a victim or survivor of sexual abuse, is not a valid extension of self-regulation.

The inappropriateness in principle of asking members of a profession to fund compensation for victims or survivors of a sexual offence may be illustrated in various ways, including the following:

Example 1: Consider a different area of practice. Assume a case in which a chiropractor is guilty of professional misconduct in suggesting wrongly to a 10-year-old boy with scoliosis, which is spinal curvature, that he will be confined to a wheelchair by the age of 15 unless he has a prolonged course of chiropractic care. As a result of duress, the boy and his parents spend over $2,000 on unnecessary treatment before they break away and complain to the College of Chiropractors of Ontario. In this case, injury and loss includes the following: psychological damage to the boy and perhaps the parents, as well as the cost of treatment.

Who should provide compensation? Another chiropractor elsewhere in the province of Ontario, the college of chiropractors or the offending chiropractor who has been guilty of misconduct and is liable in negligence?

Clearly, it is inappropriate to shift any responsibility for compensation to others in the profession. The same is true in all areas of misconduct, including sexual misconduct.

The pendulum has swung too far. Fundamental principles of fairness have been ignored when practitioner A must compensate the patient for practitioner B. Again I state that the pendulum has swung too far.

Example 2: Power and intimacy are found in many other relationships in society: in religious, charitable, voluntary, educational and sporting settings. A lawyer practising family law or personal injury law is often placed in a similar relationship with clients and minors. In none of these circumstances do other professionals, other workers or their organizations carry the responsibility for compensation for victims or survivors of sexual offences. It is wrong to create an exception for regulated health professionals.

Example 3: During consultation on Bill 100, ministry representatives have suggested that the proposed compensation fund for victims or survivors is analogous to and can be justified by the lawyers' fund for client compensation established under the Law Society Act. That reveals a complete misunderstanding of the law society fund and is invalid.

Firstly, that compensation fund was established on the initiative of the legal profession. This was to create increased confidence in and use of legal services by providing guarantees against dishonesty and fraud. It was not deemed by government that lawyers had a social or professional duty to compensate victims.

Secondly, that compensation fund is based upon a distinct and separate legal relationship: a fiduciary relationship in which a lawyer acts as a trustee for the client with respect to moneys placed under the lawyer's control.

The OCA adopts this statement by the coalition concerning the important but limited collective responsibility of a profession as a whole for the conduct of its individual practitioners:

"That collective professional responsibility includes setting, monitoring and enforcing standards of practice through financially supporting the regulatory function. It does not extend to covering the cost of treatment of patients mistreated in some way by practitioners. The therapy and counselling fund contemplated by bill 100 takes collective professional responsibility into new and uncharted territory by imposing a levy on the vast majority of health care practitioners to fund counselling and therapy resulting from the aberrant behaviour of a few."

The next issue is a definition of "sexual abuse." Here again, the OCA adopts the reasoning and recommendations of the coalition. Under Bill 100, as drafted, any comment or any behaviour interpreted by a patient as being of a sexual nature may give rise to a complaint. The offence complained of is called "sexual abuse." To illustrate what this means for health professionals, and the potential for devastating and unfair consequences, see the attached item from the Globe and Mail published last Friday, November 12, 1993.

This is further publicity concerning sexual misconduct complaints against a Toronto physician. As yet, there has been no hearing of a complaint or finding against him and he must be presumed to be innocent. If he is subsequently found guilty, most people will not view this publicity as unfair, but on the other hand, if his innocence is confirmed, most will feel this pre-trial publicity was most unjust.

Next to the Globe report is a rewritten headline and article changing "sexual misconduct" to "sexual abuse." Imagine that this relates to a complaint that relates to comments only that is subsequently dismissed as unfounded. An appropriate balance of interests requires that there be three levels of sexual offence as outlined in the coalition's submission.

Next to that, and the final headline, relates to an MPP. Imagine that this is you. The basis of the complaint is an alleged comment with no touching whatsoever. The complaint is unfounded; it is a misinterpretation of what you have said. Your legal advice is that you should not make any comment or explanation to the media pending possible charges and a hearing.

In conclusion, the purpose of this submission has been to highlight two points of particular concern to the OCA and its members. There has been insufficient time to provide more complete commentary. The OCA adopts in full the submission of the Coalition of Regulated Health Care Associations.

However, in conclusion, the OCA wishes to acknowledge that it endorses all the fundamental principles found in the Report of the CPSO Task Force on Sexual Abuse of Patients and Bill 100: in particular, the principle of zero tolerance, the related principle that no sexual offence is trivial, and the principle that there should be stringent reporting requirements on health providers, their employees and others.

Strong and effective new measures are necessary to prevent sexual offences and assist victims and survivors. However, the legislation must have a proper balance of interests if it is to gain acceptance and achieve its desired goals.

Thank you for giving us this opportunity tonight.

Ms Haeck: I would like to briefly comment on your ads, and as far as being an MPP who has frequently been misquoted is concerned, there is absolutely no possibility for righting the wrong. We have to accept that in a way others do not. Other people get a chance to deal with libel and other groups and that's not possible if you're an MPP.


The interesting thing I would like to ask as well is, why should general revenues per se basically be used to compensate, as you say at the bottom of the page in the introduction and executive summary? You have (a) and then recommendation (i).

Dr Hughes: I'll address that. Actually the basic premise behind it is that it's unjust that I pay for someone else's wrong. It's not unjust that there be compensation, but it's unjust that I then bear the burden or the responsibility for that person and his or her wrongdoing.

Ms Haeck: Why should the general public pay?

Dr Hughes: I think the basic premise is that there has to be a different mechanism of coming up with a compensation fund, that general revenue represents the population as a whole and that's where the victims are coming from, whereas again, by us or a member bearing the burden, that's unjust.

Ms Haeck: The college is there to protect the consumer, and if in fact the college cannot provide the mechanism for consumer protection, at least to even provide some counselling that might see that person rehabilitated at an earlier date, would that not be seen as sort of a proper action to counteract what the professional has undertaken?

Mr David Chapman-Smith: With the greatest respect, I would suggest that while the college has a clear role to protect the consumer as far as it can, it obviously doesn't have a total, black-and-white duty to protect the consumer in every respect. The point that we've tried to make clearly in the submission today is that there is a huge leap from working on prevention and from bringing to discipline members who have done wrong or may have done wrong to actually compensating victims. They need compensation, but why should it be from Dr Hughes?

If I might very briefly put it in this perspective, because it would be wrong for any of the chiropractors here to say it, but as their attorney perhaps I can, look at Dr Hughes here. She has a master of science and then has spent four years at chiropractic college; came out a few years ago with a huge debt; has entered a profession where 30% of its members earn $30,000 net or less per year, where there is tremendous restraint on their earnings, their incomes are frozen; she already pays over $3,000 a year for membership associations, college membership and malpractice, and she is now asked to start paying compensation for patients who need compensation. But why from her?

Ms Haeck: One of my concerns is that having sat through the RHPA process and listened to a range of professionals who wanted to have college status, one of the major concerns why certain groups were not granted college status was because of the size of the group practising that profession. The catchment area or the catchment base in the case of the colleges that were looked at during the whole Schwartz process and ultimately RHPA were all deemed to be in a position to financially afford becoming a college, and dealing with the regulation and being able to pay for the per diems of the sitting members who were going to be coming on board.

It was well understood through the RHPA process that this particular legislation would be part and parcel of the act. That came through the whole clause-by-clause. That was right there. There were placeholders indicated at the time. We went through clause-by-clause and indicated that the area of sexual abuse would be addressed within the RHPA for each college. So basically, to my mind, there was a flag raised that consumer protection, especially in this area, was going to be something the colleges would have to deal with.

Mr Chapman-Smith: Because there is such an evident and huge need in this area, there has been an effort made in the submission to give an example from a completely different area of practice. I can tell you that the example taken, sadly, incorporates some material facts from one of the worst cases there has been before the chiropractic disciplinary board over the last 10 years.

But should Janice pay for that little boy's counselling too and compensate the family for all the payments? There is a clear need for the victims, but the case put forward by the OCA is that it's no part of self-regulation to be compensating for loss. That's as clearly as I could say it.

The Chair: I think the issue is joined and your point is clear. Thank you very much for coming before the committee.


The Chair: I would then call on the Board of Directors of Chiropractic to come forward. Welcome to the committee. We apologize for the lateness of the hour, but please introduce yourselves and proceed with your submission.

Dr Edward R. Burge: We thank you for the opportunity. I certainly realize that you've had a long day and I'll try to get to the point. I think probably my submission is going to take a little bit of a different direction than some of the others may have.

My name is Ted Burge and I'm the chair of the Board of Directors of Chiropractic. On my right is Jo-Ann Willson, who is a lawyer and our director of policy analysis and research with the board. Dr Stan Stolarski is the registrar.

Just for your information, I've been involved in this regulatory process for eight years, going back into the early days of Alan Schwartz and on through, and I have personally chaired 80 formal hearings, which has given me a perspective in looking at Bill 100 as it relates to the RHPA from maybe a little different perspective.

We've had, as a board, many opportunities to strengthen the regulatory process with our input and to be part of a team that's helping to do that, but one of the concerns we have at this point in time is that our experience leads us to believe that some of the proposals in Bill 100 are seriously flawed. We've got serious reservations not only about that but about the impact of Bill 100 on RHPA, because they are basically inseparable, being that one act is there to amend another.

I'm just going to compare for a second, and I'll try to be brief --

The Chair: Dr Burge, sorry, could I just ask you, because people are watching this and they may just wonder what the difference is between the Ontario Chiropractic Association and the Board of Directors of Chiropractic.

Dr Burge: I thank you very much. As a matter of fact, I had overlooked making that distinction.

The Ontario Chiropractic Association is a professional association that is a voluntary membership of the practitioners in this province and carries out a mandate of dealing with the interests of the practitioner. The Board of Directors of Chiropractic is the regulatory board, the college, if you wish, and we deal with the disciplinary aspects of the college, with registration, examination and other issues such as that, including the complaints process. I thank you for bringing that to my attention.

Ms Jo-Ann P. Willson: The mandate is different in that the mandate of the college is to regulate the profession in the public interest.

Dr Burge: I'd just like for a moment to compare the nature of the process we had when we were dealing with the Health Professions Legislation Review with what we've had with Bill 100, and there's quite a difference.

I recall sitting here before this standing committee on social development a little over two years ago, I believe, at which point, and up until which point, there had been a very open consultative process, as established by the Health Professions Legislation Review, bringing us through to the provisions and the proposals that came into the Regulated Health Professions Act. This consultation process worked well and it was fundamental to the success of where RHPA came in 1991, at the time it received royal assent.

Alan Schwartz achieved many things, and one of the things he achieved was consensus. That's one of the things I want to point out to you today that I don't think has been achieved in Bill 100 to this point in time. Not only did he achieve a consensus, but he struck a balance. In fact, that was the title, if you will recall, of his report to the Minister of Health: Striking a New Balance. A balance sits between what one has to do to protect the interests of the public and proposals that are workable.

It's the workability that I've heard brought out today and proposals that are going to protect the public that are the two interests. I think Alan Schwartz, in his report, because of the type of process he had, was able to establish that balance, and that's one of the things I want to address today.

Most of the participants, after that process was over, were quite pleased with the proposals. The three parties endorsed it. There were no outcries of shortcomings. There was consensus, and in fact there was a balance. By way of contrast, what has transpired over the last two years, I must inform you, has been rather disheartening in that it has been relatively devoid of open consultation; it's been devoid of consensus.

In fact, I've thought as I've been sitting here today, and what you may find is that the consensus you're going to hear is that everybody agrees that sexual abuse of patients by health care providers should be eradicated -- everybody agrees with that -- but I also think everybody agrees that there are a lot of provisions in Bill 100 that are seriously flawed.

We've heard from the Coalition of Regulatory Colleges today and also you've heard from the coalition of the associations. To my knowledge, this is the first time in the history of Ontario that there's ever been a need for a coalition. I think part of that coalition requirement has come out of the frustration of colleges in trying to get their voices heard, in trying to get into a process whereby they can make their experience meaningful to producing solutions to the problems at hand.


There's no objection to the principle of zero tolerance. I have not heard that in any quarters I've been involved in; there's no one who's condoning abuse. But the process that's been used to develop these proposals obviously hasn't worked, because there hasn't been any consensus.

We're all sincere in our desire to address sexual abuse, and the few days this committee has, as I've already heard comments today, are not going to be sufficient to address the seriousness of the concerns we have. In the instance that I sit here, I have 10 minutes to give you the concerns of my board and you've got 10 minutes to hear them. The concern our board has is that this may be the only opportunity in this decade, if Bill 100 goes through, that we really have to address this serious problem. The concern goes further to say that if the process is faulty and we're just pushing this process through to try to address an issue and not addressing it properly, then we're not going to solve the problems and we're not going to deal with the real problem, which is prevention of sexual abuse and establishing what zero tolerance really, really is.

So I have a bit of a challenge for you today, and the challenge is to understand that we can't separate Bill 100 from the Regulated Health Professions Act, because one affects inextricably the other. My challenge to you is that you've got to take a look at the provisions you've got and you've got to ask yourself whether they're really going to make the Regulated Health Professions Act better. I think that's the bottom line to what I'm saying.

We have to recognize, if we go back to the review and the report of Alan Schwartz, that many of the issues that are being dealt with now and recommendations that are being made now are quite contrary to the positions that were taken by Alan Schwartz based on a consensus. To give you some examples of that, the definition of "misconduct," where Bill 100 is going right now is where he was. Mandatory reporting: He took a position on that one that is quite different from what's happening here right now, as is the case with the issuing of fines.

Beyond that, there are some incorrect assumptions that are affiliated with Bill 100, and the most important one I think I can outline to you would be this: The assumption is that it is possible for the same body to adjudicate professional misconduct, impose penalties, award compensation to survivors of sexual abuse, satisfy members of the professions and complainants that hearings are impartial, and in addition to all this, finance and administer a compensation fund. Survivors, in the view of the board, are likely to believe that discipline committees will exonerate members to avoid making payments. Members may allege that complainants are motivated to complain in order to obtain access to the fund. Members are likely to believe that discipline committees impose large fines in order to finance compensation funds.

I've provided a list. In the back of the brief, there are two appendices, one outlining the concerns with respect to Bill 100, and another about some of these assumptions that you can peruse at your pleasure.

In conclusion, my point to you is that you're going to hear a lot of details about what's wrong with the bill from other presenters, and I think it's flawed because there hasn't been consensus. If it is flawed, it's not going to advance the interests of the public, and if it doesn't work, the problem of sexual abuse isn't going to be properly addressed.

I'm leaving you with a challenge that I think you're mandated to consider, and that is to understand that the Regulated Health Professions Act is built on a model of self-regulation, that professionals have a responsibility to regulate themselves, not necessarily be told every detail about how they have to do that, and I think the professions are prepared to take on that responsibility. If Bill 100 is to achieve the objective of advancing the public interest, you must decide if the proposals of Bill 100 are really going to meet that end.

I'm going to make a plea to you right now that you reconsider the proposals of Bill 100 on the basis that there's no consensus to support them, and I'm going to request that this committee recommend to the Minister of Health to establish a process that allows for a real consultation with all interested stakeholders. The process established by the health professions legislation worked well and we learned a lot from it, and it's my view that it's a much better way to reach consensus on how to deal with issues of sexual abuse.

The damage that's caused by sexual abuse demands nothing more than the most we can do to create the most effective legislation possible. We're not here to suggest that the thrust and the direction that we're going to use to deal with it is wrong, but that the way we're going about it is more than likely to encumber the regulatory system, which has been founded on a consensus and balance, with provisions that may not solve all the problems.

Mrs O'Neill: You've capsulized it perfectly. This is one of the major weaknesses, that the Regulated Health Professions Act took seven years in its making, and I think that's why it has been so well accepted. What we have here is a real, you'd almost say, snow job, certainly a bulldozer job to get this bill through. I feel it's an insult to the professionals, an insult we've had to listen to this afternoon, to have professionals sitting in this room this afternoon who likely have a thousand years' cumulative experience not being given the opportunity to either be questioned by us or to be able to present their case to us as fully as they'd like, and each of you presenting executive summaries and trying to fit it into 10 minutes.

I have no questions. I think you have stated the real frustration we're all feeling. We know the bill is flawed, we know there could be amendments, and we're now being told we're going to have two hours in which to present any amendments that may come out of these hearings. Is this a sham? I don't know.

Ms Willson: Thank you very much for your comments. Sitting here and listening this afternoon, the theme I have got is that there has been insufficient time to properly consider this bill. Members of the committee, or at least some of them, appear to be frustrated because they don't have time to ask their questions. The colleges and the associations are frustrated; they haven't had time to attempt to reach a reasonable consensus with survivors. The survivors, some of them, appear to be frustrated; they don't feel their concerns have been heard.

This is such an important issue that I don't understand why the entire legislation is being pushed through. We have to remember that what we're dealing with is an amendment to a bill that has not yet been proclaimed. It's going to be proclaimed at the end of next month. Because the issue is so important, I don't know why we can't stand back and try and deal with it properly, allow all the stakeholders a real opportunity to try to reach a consensus and try and make something that's going to be workable as opposed to not workable.

Mr Jim Wilson: Thank you for your presentation. I agree with almost everything you said, Ted.

Dr Burge: Thank you.

Mr Jim Wilson: I guess that is the question: Why the rush? I'll tell you what's happening here. We've just been time-allocated, certainly contrary to anything the NDP ever campaigned on: They were going to be an open government; they were going to take the time to do things right. They accused my party and the Liberal Party of always rushing things through on some sort of corporate agenda or something like that. We've got time allocation in this House on a daily basis now, not to mention that last year they changed the rules on debate. None the less, their days in office are numbered and they want to rush this through.

I heard it on the steps on the way up and I heard it in the House and I heard it from some members opposite: When the colleges now plead, "Please get the bill right or it'll be unworkable," in fact at the end of the day this may backfire on survivors.

Ted, in a nutshell, you did a good job of talking about the almost transparent conflict of interest from the beginning of this thing to the end. The person who is alleged to have committed a sexual abuse will be dealt with totally by his or her own college. They will levy the fines, they will do everything. We just heard from the previous presenters that the way this bill is presented, because it's flawed, if it's passed as currently written we may in fact find the whole thing backfiring; that is, that colleges say, "Look, we don't even want to deal with the issue of sexual abuse until we're absolutely forced to, and complain away, but we'll drag our feet on this." I don't expect colleges to do that, because they're professional people, but you may be forced to do that if you can't live with the bill or if it isn't workable.

I say to members, we're the ones who have to deal with the survivors. They're our constituents. If at the end of the day we pass legislation that's unworkable -- and Ted's absolutely right. You know that with all the other things that have to be done by whoever forms the next government, it'll be at least a decade before we get back to this issue and it'll be at least a decade before we're in any way significantly opening up the RHPA. I agree that we took such painstaking time with hundreds of meetings and thousands of hours devoted to the RHPA process -- long before I was elected; it preceded me by some five years -- that I think we did come up with workable legislation.


I really just echo what you've said. I want to give you a chance to respond to the accusation that was just levied at opposition parties and the colleges, that the reason you want to see this bill stalled for a bit is that somehow your hearts aren't in it and you're not there for the interests of survivors. I'll tell you, as an MPP, I resent that accusation totally because I know the survivors are ultimately my constituents and I'm responsible to them. Some of them may be my very best friends and my own family, and I think it's in all of our interests to get this right. I want you to respond to that accusation. I can tell you, it's the spin that's been going on for the last two hours and I'm just fuming about it.

Dr Burge: There were two elements. I'm going to address one and I'm going to ask Jo-Ann to address the other one. First of all, the Regulated Health Professions Act was no small piece of work, and there's every provision, in my view, within that act for our college to deal with any issue that comes before it with respect to any allegation of misconduct, be it defined as sexual or any other form of conduct.

I can tell you, the authority on which I can say that is that the Drugless Practitioners Act has one word, and it's "misconduct." It's not broken down into sexual misconduct and it's not broken down into abuse and it's not broken down into anything else; it just says "misconduct." If the Regulated Health Professions Act gives us the tools that are so far superior to what we have now, and if we're able to do it now -- at least a lot of what has to be done now -- with the poor tools we have, then the rush to get into this next step of dealing with specifics of one element of misconduct of health professionals is an issue that I find difficult to understand. In other words, we can, right now, address any allegation of impropriety, we can address abuse, we can address anything that comes before our college through a disciplinary process, so I fail to see why we're rushing through all of these other issues in terms of the specific words that we're trying to get consensus on and we're having trouble with.

The other issue I believe you wanted addressed was --

Mr Jim Wilson: About your stalling.

Ms Willson: I don't think that's a fair comment. I do think there's a sincere interest on the part of survivors and on the part of colleges and on the part of associations to try to resolve the problem. I don't think people are attempting to stall. The point is that unless all of the stakeholders buy into the legislation, it's not going to work for anybody. At this point, the stakeholders don't buy into it.

Ms Haeck: Again, I did sit through RHPA. I must admit I've forgotten how many verbal presentations there were, but I know we had at least 500 written presentations. I'm convinced that consensus was not achieved on a number of issues throughout a range of colleges. The number of breakfasts I had with David Chapman-Smith and Lloyd Taylor on the issue of how chiropractors felt and their concern about how the OMA felt I think was a pretty good example that there was no consensus on certain issues the association had -- not your college, because the college wasn't involved, but the association; I do understand the difference between the two.

I understand there is a concern here with regard to a number of issues. But in light of the fact that the McPhedran report came down in the fall of 1991, we are now talking the fall of 1993, and since then the various issues around this particular bill have been discussed, including the fact that this bill would have been in committee probably during the summer; and as a result of the Liberal request from Mrs O'Neill or Mrs Sullivan, this was then taken through what normally would have been our intersession, where there was additional consultation through the professional organizations, as well as with stakeholder groups, in an attempt to achieve consensus.

My point, more a comment than a question, is that I don't believe that the survivors of sexual abuse can wait another 10 years, as the RHPA process dragged -- I shouldn't say "dragged." It took a long time. Basically, at this point I think a decision has to be made. I personally feel that on behalf of a lot of the survivors out there who have been waiting for this to be resolved for some considerable length of time, the time has come. A lot of these provisions have been before not only the stakeholders but the survivors, the general public, for a fair bit of time. While there may be minor changes from various groups that come before us that I think are an advantage for us to bring forward as amendments, the substance that is brought forward here in Bill 100 I personally don't have a problem with, and I will be substantially voting in favour of it.

Dr Burge: I just want to make the point that I am a chiropractor, but I'm not here today because I'm a chiropractor. I'm here because I have a responsibility to protect the public interest. I've had an experience in dealing with disciplinary matters and I can see, as can all the other colleges -- that's the message they're trying to give you -- that there are some loopholes, there are some problems in this thing that aren't going to make the job easier; they're going to make it more difficult. That's the point I want to make.

I'm not here to defend or to speak against the issue of implementing measures to nail this thing down as tight as it can be done. But if you don't have consensus and if you don't have people believing it can be done and if it isn't going to work, then the question is, why are we going to proceed at this pace? That is the only point I want to make.

Ms Haeck: The reality is that unless we actually start to give it a try, we'll never know. Waiting another however many years until we have that perfect solution, which I don't know --

Mr Jim Wilson: We're talking about days.

Ms Haeck: No, Jim, I think you have to be fair. This has gone on for two years. I think we are reasonably intelligent laypersons.

The Chair: Order, please. We have witnesses before us. Ms Haeck, if there's a question there --

Ms Haeck: Ultimately, it does come into our hands as laypersons who have to make the final decision in representing the public. The public, the survivors have spoken, that they want to see some changes in the legislation.

Dr Burge: I agree that there may need to be some changes. I might just make one other point, if I may, Mr Beer. The objects of the college, as they were agreed to by consensus through a long process of consultation with the Health Professions Legislation Review, did not include the funding issue. I want to make that point because that is the major concern with respect to the regulatory colleges.

I understand that professionals and associations may have different views from ours, but this is a very conflicting position to place colleges in. It's not an issue of whether survivors of sexual abuse should be compensated or be dealt with in the most fair and sensitive fashion. It's the way in which it's being proposed that is going to be problematic for the colleges to implement.

The Chair: Thank you very much for coming before the committee. Again I apologize for the lateness of the hour, but we appreciate you staying to make your submission.

The committee will stand adjourned until next Monday, November 29, at 3:30 pm.

The committee adjourned at 1848.