CONTENTS
Monday 22 November 1993
Expenditure Control Plan Statute Law Amendment Act, 1993, Bill 50, Mrs Grier / Loi de 1993 modifiant des lois en ce qui concerne le Plan de contrôle des dépenses, projet de loi 50, Mme Grier
STANDING COMMITTEE ON SOCIAL DEVELOPMENT
*Chair / Président: Beer, Charles (York North/-Nord L)
*Acting Chairs / Présidentes suppléante: O'Neill, Yvonne (Ottawa-Rideau L); Haslam, Karen (Perth ND)
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)
*Owens, Stephen (Scarborough Centre ND)
*Rizzo, Tony (Oakwood ND)
*Wilson, Jim (Simcoe West/-Ouest PC)
*In attendance / présents
Substitutions present / Membres remplaçants présents:
Grandmaître, Bernard (Ottawa East/-Est L) for Mr Eddy
Haeck, Christel (St Catharines-Brock ND) for Ms Carter
Haslam, Karen (Perth ND) for Mr Hope
Wessenger, Paul (Simcoe Centre ND) for Mr Martin
Also taking part / Autres participants et participantes:
Ministry of Health:
Grier, Hon Ruth, minister
Wessenger, Paul, parliamentary assistant to the minister
Bishop, Patricia, special assistant, policy
Henderson, Christine, legal counsel
Schwartz, Ella, policy analyst, professional relations branch
Clerk / Greffier: Arnott, Doug
Staff / Personnel: Swift, Susan, research officer, Legislative Research Services
The committee met at 1538 in room 151.
REGULATED HEALTH PROFESSIONS AMENDMENT ACT, 1993 / LOI DE 1993 MODIFIANT LA LOI SUR LES PROFESSIONS DE LA SANTÉ RÉGLEMENTÉES
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 hearings of the standing committee on social development. We're here to begin deliberations on Bill 100, An Act to amend the Regulated Health Professions Act, 1991.
The Minister of Health is with us this afternoon to make the opening presentation. Without further ado, Minister, welcome to the committee and please go ahead with your submission.
Hon Ruth Grier (Minister of Health): Thank you very much, Mr Chair. I'm glad to be here to make the opening statement. I very much regret that I'm not going to be able to stay for the rest of this afternoon or for all of the rest of your deliberations, but I just wanted to make the point that I consider this an extremely important set of hearings and will be following it with interest and be in close contact certainly with the government members who are members of this committee and with yourself, should that be necessary. I know lots of staff will be here to keep me up to date on what's happening.
As everyone on the committee is well aware, public concern regarding the potential for sexual abuse of patients by health professionals is unprecedented. Bill 100 is a response to these concerns and related demands for greater accountability on the part of health care professionals.
With the Regulated Health Professions Act expected to be proclaimed on December 31, 1993, it is critical that the 24 professions that will be self-regulating have a set of rules to deal with sexual abuse of patients and that patients are assured of protection against such abuse.
Sexual abuse was catapulted into public consciousness in 1991 when public hearings of the College of Physicians and Surgeons of Ontario Task Force on Sexual Abuse of Patients began. At that time, a Canada Health Monitor survey commissioned by the college indicated that almost one in 10 women in Ontario said she had been sexually harassed or abused by a physician at least once. The survey also indicated that as many as 400,000 women in Ontario may have been sexually humiliated, demeaned or violated while seeking medical care.
I'm sure everyone agrees this is an intolerable situation. Abuse of trust between a patient and a professional has devastating consequences. People need to know that the law supports their right not to be victimized. They have the right to expect that the treatment they receive from a health care provider will be proper, not improper, and caring, not damaging.
Those of us who have never faced the trauma of sexual abuse can only imagine the extent of its damage. Survivors describe it as a devastating experience that leaves deep emotional scars. The government has a responsibility to protect the interests of the victims, to provide them with mechanisms for effective recourse and to make health professionals aware that if they abuse the relationship of trust between a patient and a health practitioner, there will be serious consequences.
The principle embodied in these amendments is clear: Sexual abuse of patients is never acceptable and will not be tolerated. It's just that simple.
Let me say that I believe the vast majority of health professionals are providing competent, prudent care. But given the extent of reported sexual abuse, it's clear that the government has an obligation to provide protection against the minority who take advantage of their patients' trust. Expeditious passage of the legislation before us will address this need.
Since this legislation was tabled almost a year ago, a number of concerns have been raised with respect to the wording of some of the sections. Over the course of that year, government representatives and ministry staff have attended numerous productive meetings with interested parties to discuss possible changes to the bill, changes that will enable it to do the job we all want it to do.
I want to thank the members of the opposition parties, particularly my two critics, for their participation in the briefings and in the meetings to make this proposed legislation even better. I hope they'll agree with me that it's been a constructive use of those months.
We have listened and given serious consideration to the arguments that have been put forward. We believe that the amendments we've proposed make the legislation workable and practical and that it represents acceptable compromises. The public is eager to have these safeguards enshrined in law. The time has come to act.
Our consultations over the past year have resulted in approximately 20 amendments to the legislation. You are, I know, about to receive a detailed briefing on all of these changes later this afternoon. For now, I thought what might be helpful for me to do would be to highlight some key areas where amendments have been made in response to concerns voiced by either the public or the professionals.
As you know, the act provides for one level of sexual offence. This offence, called sexual abuse, will cover sexual relations, touching of a sexual nature and behaviour or remarks of a sexual nature that are -- and these adjectives have been added to narrow the definition -- "demeaning, seductive or exploitative."
Over the past year, some concerns were raised about this single level as the College of Physicians and Surgeons task force recommended three separate levels of offence. Our consultations indicate that a single level meets the needs of most professionals as well as survivors. Health professionals and lawyers believed that three different levels of offence would make it more difficult to prove charges of sexual abuse, and survivors felt that three levels trivialized the incidents of remarks and behaviour of a sexual nature.
I should point out that survivors were particularly concerned about distinctions in the level of offence. Their experience indicated that inappropriate remarks and behaviour often function as a prelude to more serious offences. They suggested that a potential abuser might employ these as techniques for testing a patient's vulnerability, to "groom" the patient for future possibilities more physical in nature. We've taken these concerns seriously in proposing amendments to Bill 100.
I should also draw your attention to the matter of penalties. The penalty for certain acts of sexual abuse, such as physical sexual relations, is revocation of a professional's certificate of registration for a minimum period of five years and a fine of up to $35,000. For other acts of sexual abuse, the penalties range from a reprimand to revocation of certificate of registration.
Mandatory reporting is another area that has been discussed at length. The proposed legislation requires that any regulated health professional who has reasonable grounds for believing that a colleague has committed an act of sexual abuse must report it to the appropriate college. Failure to report is a provincial offence.
Currently, Bill 100 has a provision that allows for exceptions to mandatory reporting. We are proposing an amendment to delete this provision so that there can be no exceptions to the mandatory reporting requirement.
To provide additional sensitivity to complainants' needs, as well as flexibility to make mandatory reporting work, the government is considering amending the bill to allow assessment and remediation of members reported under category 1(3)(c), pertaining to words or behaviour of a sexual nature. This in fact would provide a more responsive solution to correcting inappropriate behaviour and ensuring that the course of remediation, whether it be therapy or education, has been effective.
During the consultations, concerns were raised about the potential effect of mandatory reporting on the climate of the workplace. We feel that this concern should be examined in the context of the hostile environment or chilly climate, as well as jeopardy of care, resulting from sexually demeaning remarks or behaviours. The negative effects of such environments have been well documented. That's why we're confident that the text in this section strikes an appropriate balance between the interests of potential victims and those in positions of power.
I should also point out that the mere fact that an incident has been reported does not make the alleged perpetrator guilty. The college of which a professional is a member thoroughly investigates all reports to determine if there is enough evidence to proceed to a hearing. If the basis for a hearing is insufficient, the complaint will not be pursued.
With regard to mandatory reporting, I should alert you to one significant change: The government has suggested an amendment to exclude provisions for reporting incompetence and incapacity. Many survivors argued for retention of these provisions. We look forward to hearing about possible alternative ways of protecting consumers against incompetence which might go unreported.
Another issue that has been discussed extensively throughout the consultation process is funding to cover the costs of counselling or therapy for survivors of sexual abuse. When a college finds a member guilty of sexual abuse, there is a provision in the legislation that the college must provide financial help for therapy and counselling to the survivor.
Each of the 21 colleges will be required to establish and fund programs for this purpose. Each college may decide how it wants to raise the money, but standards of survivors' access must be uniform across all colleges. The maximum amount provided to the survivor will be in the $10,000 range.
This funding recognizes that the consequences of sexual abuse are devastating and that survivors may require specialized care. Survivors generally feel $10,000 is modest, but are pleased that no assessment, psychological or other, will be required to receive the funding.
During consultation, it became clear that survivors should be free to choose the type of therapy that best meets their needs, even when the therapist is not covered by OHIP. If the survivor chooses to seek help from a psychiatrist, OHIP will pay.
The last two government amendments I wish to bring to your attention are intended to strengthen the rights of complainants at disciplinary hearings.
As I'm sure you're aware, in the past many survivors of sexual abuse have failed to come forward because they have found the disciplinary process demeaning and harmful. In crimes of a sexual nature, impugning the character of complainants is a familiar tactic of the defence, and the adversarial nature of such proceedings may contribute to the further victimization of complainants.
In the course of our consultations, complainants repeatedly highlighted their lack of input into how the evidence was presented by the prosecutor and their lack of a voice at a hearing. They also noted that they were excluded from the hearing, while the professional was allowed to be present throughout.
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After listening to many different stories on similar themes, we recognized that these conditions intensified complainants' feelings of powerlessness. In fact, I think it's appropriate to say that for many survivors the disciplinary process became a second silencing, resonant of the initial abuse they endured.
Bill 100 has been amended to strengthen survivors' rights in this regard. This section requires the defence to provide at least 10 days' notice prior to the hearing of any expert evidence they intend to introduce. This will allow complainants to prepare a defence if accusations are to be made about their behaviour or character.
With Bill 100, college disciplinary committees have also been given power to grant non-party status to complainants whose good character, proper conduct or competence is in question or whose psychiatric history is introduced into evidence.
Another concern that was raised by survivors of sexual abuse during consultation is that they are likely to suffer post-traumatic stress disorders. So for the first time, Bill 100 provides non-party status to be granted to groups that can help the discipline committee in its deliberations. The bill gives panels the authority to allow groups to participate in a hearing with a view towards putting the survivor's experience in context. The scope of participation of both complainants and groups granted non-party status may range from making written submissions to cross-examining witnesses.
In closing, let me say that we are confident that with these proposed amendments Bill 100 is workable. The bill balances the interests of the survivors of sexual abuse and health care professionals while responding to consumer demands for greater accountability of regulated health care professionals.
I should point out, however, that Bill 100 also contains a mechanism for its continuing evolution. The legislation will be monitored by the Health Professions Regulatory Advisory Council, which will report to the minister on its overall effectiveness no more than five years after the law comes into force.
Once again, let me stress the need for moving quickly on these amendments. Recent decisions at the Divisional Court level have dramatically reduced the stiff penalties imposed by the College of Physicians and Surgeons of Ontario on doctors found guilty of sexual abuse. We can only imagine the effect this has had on survivors who may be thinking about coming forward with their stories. Judges who do not acknowledge the seriousness of sexual abuse involving a breach of trust obviously need further education about its devastating effect on survivors. Although no government can ever write legislation that will preclude a court from opening up tribunal decisions, it can clearly set out definitions of sexual abuse with equally clear penalties.
There's an urgent need for one set of rules that everybody can follow. I'm confident that Bill 100 meets that need. The time is right, as passage of this bill will dovetail with the proclamation of the Regulated Health Professions Act by the end of the year. It is absolutely critical that consumers receive the full protection of the new legislation as soon as possible, protection which can only be fulfilled with the amendments provided by Bill 100. Its value to survivors of sexual abuse and its vital importance to the public interest cannot be overestimated.
The Chair: Thank you very much, Minister. I know you have to go, but if there are any questions, do you have a few minutes?
Hon Mrs Grier: Yes, indeed I do. If not, I don't know whether Christine Henderson, who's legal counsel on this bill, has been introduced, but she will certainly be here and I think is going to take the next stage of going through some of the legislation.
The Chair: I thought I would just ask the members, given that you will have to go, if perhaps they would like to ask some questions. I also seek direction from the committee if they would prefer to go through the briefing on the bill and then make comments, but we may want to begin with questions.
Mr Jim Wilson (Simcoe West): Without infringing upon my right to point out perhaps some improvements to the bill as we proceed through the hearings, I just want to compliment the minister on her statement today. I thought it was extremely thorough and thoughtful, and certainly my intention and that of my caucus colleagues is to be as cooperative in this process as possible, and I give you that stated on the public record today.
The Chair: Thank you.
Hon Mrs Grier: Let me respond very gratefully and acknowledge that. Also, as I said in my opening comments, the member, as well as the member for Halton Centre, has been very much part of it. It has been an extremely constructive and productive dialogue among all three parties as we've tried to produce, with a very important piece of legislation, the best possible and most workable legislation we could, and I thank you for that.
Mrs Yvonne O'Neill (Ottawa-Rideau): Thank you, Madam Minister. I'd like to go to page 3, if I may, because I wasn't part of those discussions and certainly there weren't many who were. I know this is a part that is worrying several of the professionals, so you may want a minute or two to expand further on the section regarding additional sensitivity to complainants' needs and the process now of assessment and remediation of members reported under this category. Would you like to say a little more about why you've done that, why you think that's going to be helpful; just expand on your statement?
Hon Mrs Grier: I think it essentially responds to the need that was expressed for some range of options under the legislation and to have some flexibility. While there were those who said that the nature of the offence should be divided into the three parts that had originally been identified, the conclusion of most people was that no, it was preferable to have a single offence but acknowledge that within that there needed to be a range of measures taken, whether that be penalties or remediation. It was as a result of those discussions that we came forward with that amendment.
The Chair: Is it the wish of the committee to proceed to the technical briefing? Seeing no objection, Minister, thank you for coming before the committee.
Hon Mrs Grier: I appreciate it and, as I say, will be following with interest the deliberations and wish you well. I gather there are a lot of people who wish to appear. We had hoped that as a result of the discussions over the summer we might diminish your load, but it doesn't appear we've done that, so I apologize for that.
The Chair: Thank you. I believe the parliamentary assistant is going to join us at the front.
Hon Mrs Grier: I think the member for Simcoe Centre is going to be carrying it.
The Chair: It somehow doesn't seem appropriate that he's not there. I'll ask the two opposition parties if we can proceed with the technical briefing and if there are any comments you wish to make, that you do so at the end, okay? With that, parliamentary assistant, perhaps you could have those who are going to participate identify themselves and then go ahead with the briefing.
Mr Paul Wessenger (Simcoe Centre): Yes, we'll ask Christine Henderson, first of all, to introduce herself.
Mrs O'Neill: Excuse me, Mr Chair. Before we begin, are we going to be referring to these amendments that were passed out? We've only got one between the two of us. Are there more copies?
The Chair: I don't know whether they'll be referred to, but the clerk has some other copies and will pass those out. Please go ahead, Ms Henderson.
Ms Christine Henderson: Good afternoon. My name is Christine Henderson and I am a counsel with the Ministry of Health's legal services branch. I am going to provide you with an overview of the provisions of Bill 100 and the motions to amend the bill this afternoon. I'm going to approach the task by discussing general areas in the bill and the motions in a way that will not be chronological according to the sections in the bill, but in a way that I hope is logical.
The Chair: The committee is all in favour of logic.
Ms Christine Henderson: Good. I would ask you to make a note of your questions, and perhaps we can get to the bulk of them after the overview. At this time, I'd also like to introduce Ella Schwartz, who is a policy analyst from professional relations branch; and also the minister's special adviser, Patricia Bishop, who may or may not now be in the room at the moment, who will also be fielding some of the policy questions.
You may wish to have reference to the actual provisions of the bill and the motions as I address these provisions, so I would refer you to the appropriate page number in the consolidated report, which is in your briefing books at tab 8. You may wish to locate the report.
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The consolidated report, you will note, contains provisions relating to the Regulated Health Professions Act, 1991, which I will refer to as RHPA; Bill 100, which I will refer to as the bill; and to the proposed government amendments.
We will now discuss the significant changes the bill makes to the RHPA, along with the proposed government amendments to the bill.
Pursuant to the bill's provisions, sexual abuse of patients is made an act of professional misconduct. How does the bill define sexual abuse? If you turn to page 7 of your consolidated report, you will note that "`sexual abuse' of a patient by a member means sexual intercourse or other forms of physical sexual relations between the member and the patient; touching, of a sexual nature, of the patient by the member; or behaviour or remarks of a sexual nature by the member towards the patient that are demeaning, seductive or exploitative."
You will note that the government amendment to Bill 100, as the minister noted, changes the current provisions in the bill under clause 1(3)(c).
Bill 100 places new mandatory duties upon individual regulated health care professionals and upon institutions that employ them.
At page 19 of your consolidated report you'll find the mandatory reporting provisions relating to regulated health professionals set out. Members of colleges must file a mandatory report if they have reasonable grounds to believe in the course of practising the profession that another member of the same or a different college has sexually abused a patient. This means, of course, that the statutory obligation to report sexual abuse of a patient will apply to members of one's own college as well as to members of other colleges.
You will note that the proposed government amendment to Bill 100 has deleted the mandatory reporting requirements relating to incompetence, incapacity or acts of professional misconduct designated in college council regulations.
A member of a college will not be required to file a report if he or she does not know the name of the member who would be the subject of the report, the alleged abuser.
If a member is required to file a report because of reasonable grounds obtained from his or her patients, the member must use his or her best efforts to advise the patient about the requirement to file before actually filing the report. That's at subsection (5) at page 19.
Finally, the bill provides for exceptions to the mandatory reporting scheme, and such exceptions must be prescribed by regulation. As the minister noted in her address, the ministry in fact proposes that these provisions be struck out. That's subsection (4) within section 85.1 at page 19. Those provisions will also be struck out under the government's proposed amendments.
At page 20 of the consolidated report you will note that a similar mandatory reporting obligation will be placed upon operators of facilities where one or more members of colleges practise, if the person who operates the facility has reasonable grounds to believe that a member who practises there has sexually abused a patient. Thus, new statutory duties will be placed upon operators of hospitals, nursing homes and other institutions, wherever regulated health professionals are employed. You will note again that the government amendment to Bill 100 strikes out the requirements of reporting by facility operators in relation to incompetence, incapacity or designated acts of professional misconduct.
If the name of the member who is alleged to have committed the sexual abuse is known, the report must be filed in writing with the registrar of the college where the alleged abuser is a member. The written report must contain the following information, and this is set out at page 21 of your report: the name of the person filing; the name of the alleged abuser; an explanation of the alleged sexual abuse; and finally, the name of the patient who may have been sexually abused, but only where the patient or his or her representative consents in writing to the use of the patient's name.
What about timing? When must a report be filed with the appropriate registrar in the case of alleged sexual abuse of a patient? The report must be filed within 30 days after the alleged event occurred, unless the reporter has reasonable grounds to believe that the alleged abuser will continue to sexually abuse that patient or other patients, in which case the report must be filed immediately.
If you look at your consolidated report at page 21, you will see some minor changes made to the provisions of the bill by the proposed government amendment. These are as follows, if you wish to follow along:
-- Subsection (2) of 85.3, strike out "in a case of alleged sexual abuse."
-- Subsection (3), strike out the entire subsection.
-- Clause (4)(c), strike out the words "misconduct, incompetence or incapacity and an explanation of the grounds of the member filing the report."
-- Finally, subsection (6), again strike out "in a case of alleged sexual abuse."
Still at page 21, if a member is required to file a report but is providing psychotherapy to a college member who would be the subject of that report, the report must also contain the opinion of the counsellor, if he or she can form one, about whether or not the alleged abuser is likely to sexually abuse patients in the future.
At page 22, the bill goes on to provide that if such a report is filed, an additional report must be filed immediately if the psychotherapy ends.
At page 23 of the consolidated report, the bill's provisions state that a person who terminates the employment of a member of a college or who imposes restrictions on their privileges or does anything to restrict their practice for reasons of professional misconduct, incapacity or incompetence, must file a written report setting out the reasons for doing so within 30 days.
Similarly, if a person intended to terminate or restrict a regulated health care professional's privileges or employment for those reasons but did not do so because the member voluntarily resigned or voluntarily relinquished privileges, then a report must again be filed within 30 days, setting out the reasons why there was an intention to act.
These provisions apply to every person who employs or offers privileges or associates in partnership or otherwise with a member to offer health services.
Finally, no action or other proceeding can be instituted against a person for filing a report in good faith.
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It's also important to note at this juncture, as the minister noted, that the government is intending to table a motion that would permit colleges, in appropriate cases, to refer members who have been accused of sexual abuse under clause 1(3)(c) -- that is, sexual abuse constituting words or gestures that are demeaning, seductive or exploitative -- to assessment and to possible remediation, rather than discipline.
The bill also provides for stiff penalties for failure to report cases of sexual abuse. Anyone who contravenes their obligation to file a report is guilty of an offence and upon conviction is liable to a fine of not more than $25,000. That's at page 27 of the report.
Finally, at page 26 of the consolidated report, the bill states that no person shall do anything to the employment or to a contract for services of a reporter in retaliation for filing a report or for making a complaint, as long as the complaint was made or the report was made in good faith.
We now turn to the general area of funding for therapy and counselling. As you know, all colleges will be responsible, pursuant to the bill's provisions, for establishing a program to provide funding for therapy and counselling for persons who were sexually abused by members while they were patients. The patient relations committee of each college shall administer the program.
A person will be eligible for funding if a panel of the college's discipline committee makes a finding that the person, while a patient, was sexually abused by a member, or if the patient meets such other prescribed alternative requirements as are set by college councils. These provisions, by the way, are set out at page 24 also.
A person's eligibility for funding will not be affected by an appeal from the panel's finding. The motions tabled by the government to amend the bill also include provisions respecting that there be no assessment of a person who receives funding. In other words, a person will not be required under these provisions to undergo a psychological or other assessment before receiving funding. The no-assessment provisions are not included in your consolidated report, but you may wish to add them at page 24 if you wish. They do form part of the government's motions to amend.
Over at page 25 of the report, you'll note that proposed amendments to the bill state that a person who is eligible for funding is entitled to choose any therapist, subject to these restrictions: The therapist must not be a person who has any family relationship to the person receiving the counselling; the therapist must not be a person who has at any time been found guilty of professional misconduct of a sexual nature or who is guilty of a criminal offence in this regard; if the therapist is not a regulated health professional, the college may require that the eligible person sign a document stating that he or she understands that the therapist will not be subject to professional discipline.
Funding for therapy will be paid to the therapist directly and may only be used for the purposes of counselling or therapy.
Finally, funding provided to an eligible person will be reduced by any amount that the Ontario health insurance plan or a private insurer is required to pay.
You should note also, at the bottom of page 25 of your consolidated report, that the subrogation provisions which are there have been deleted from the bill by the government's motions to amend. You may wish to strike out subsection 11 now from your consolidated report.
The government intends to table an amendment that would instead provide colleges with a statutory cause of action to recover funds that they have expended for the purposes of counselling. Such provisions, of course, would never interfere with a patient's right to sue civilly, to pursue the perpetrator and sue civilly.
At page 28 of the consolidated report, proposed government amendments to the bill provide regulation-making powers to the colleges that will permit them wide latitude to develop schemes including insurance schemes to support the program for funding. Colleges will be enabled to make regulations that require members to pay amounts to fund the program and to participate in arrangements set up by that college or groups of colleges, should they chose to work within a group scheme, in which members or classes of members will have to pay prescribed amounts to support the program for funding.
Further, college councils will be able to make regulations authorizing the patient relations committee to require therapists who are providing counselling under the program and persons receiving such counselling to provide written statements signed by these parties containing details of the therapist's training and confirming that the therapy and funds provided for it are being devoted only for the purposes of counselling.
At page 13 of your report, the government's amendments will also permit colleges to require the perpetrator to reimburse the college for funding expended for therapy and will also permit the college to require of the perpetrator suitable security to guarantee the payment of those amounts.
For the purposes of the programs established for funding for therapy and counselling, you will recall that the funding must be in accordance with ministry regulations.
What the government is proposing is that these regulations set a maximum amount of funding that may be provided to an eligible person -- the minister alluded to this -- and the maximum amount will be approximately $10,000 worth of therapy or counselling, about the amount the Ontario health insurance plan would pay for 200 half-hour sessions of outpatient psychiatric care.
The regulations will also provide that the period of time within which a person can have access to funding is five years from when the eligibility was established or from the day the panel commenced hearing the matter at issue.
There are procedural changes as well incorporated into the bill's and the amendment's provisions.
At page 10 of your consolidated report, non-party participation in disciplinary or incapacity proceedings is addressed.
Under these provisions, a panel may now allow a person to participate in such a hearing if the good character, propriety of conduct or competence of person is at issue in the hearing or if the participation of the person would be of assistance to the panel. The panel will determine the extent to which the person is allowed to participate and may allow the person to make oral or written submissions, to lead evidence and to cross-examine witnesses.
The government's amendment respecting disclosure of expert evidence is set out at page 11 of your report and essentially provides that where expert evidence is led by someone other than the college, the college must receive a copy of the expert's written report or a written summary of that evidence and the college must be made aware of the identity of the expert at least 10 days before the hearing.
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At page 15 of the report, the government amendment to the bill provides that, in the appropriate case, a panel may order a member who it has found has committed an act of professional misconduct or who is incompetent to pay all or part of the college's legal costs, the college's costs incurred in investigation of the matter and the college's costs incurred in conducting the actual hearing.
Again at page 13, the maximum fine in all disciplinary proceedings is increased by the bill's provisions to $35,000.
The bill also sets out mandatory penalties for sexual abuse. Yes?
Mrs Karen Haslam (Perth): I have a question about something you covered a long time ago, so I wanted to be put on the list when it comes time. You did it a long time ago; I just haven't had a chance to catch Mr Beer's eye.
The Chair: My eye is now caught.
Ms Christine Henderson: Reprimands are required, and for certain kinds of sexual abuse which are set out at page 14 of your report, under the bill's provisions, the health professional's certificate of registration must be revoked.
If you'll note at page 14, the government's motions to amend have deleted subparagraphs vi, vii and viii. You can strike those out, subparagraphs vi, vii and viii, the bottom of page 14, under Bill 100 provisions.
Also at page 14, the government amendments will require a panel of the discipline committee to consider any written statement that has been filed describing the impact of the sexual abuse that was committed towards the patient. All such statements must be provided to the member, the member's counsel and to the college.
At page 16, you will note that a person whose certificate of registration has been revoked due to sexual abuse may only apply for reinstatement five years after such revocation. You will also note at page 16 that panels will not be able to issue new certificates of registration to applicants whose certificates have been revoked for sexual abuse unless certain prescribed conditions have been met. Those proposed conditions are set out at page 16, at the bottom. These conditions reflect the task force report's recommendations.
Finally, information kept in the register and made available to the public has changed. Now the results of every disciplinary and incapacity proceeding completed within six years before the register was last updated must be made available to the public. Where the member was found to have committed sexual abuse constituting physical sexual relations or touching of a sexual nature, the information will be on the register and available to the public for 10 years.
In addition, where a matter that has been decided by a panel of the discipline committee is under appeal, the register shall note that information, and the results of every proceeding contained in the register will include the following information: the panel's finding, the particulars of the grounds for the finding, the penalty that was imposed upon the member and any reprimand that was given.
Thank you for your attention. I hope this has been helpful and we now look forward to your questions.
The Chair: Thank you very much for that presentation. We will then move to questions.
Mr Jim Wilson: That was extremely comprehensive, counsel, and very quick. I had great difficulty writing down my questions at the speed at which you were going, but I appreciate it, because I know there's a lot of stuff here and we had seen it; we've had this before us for a little over a week.
I had a quick question, if I can think of what it was, on page 19, 85.1(5), a minor question. The section reads, "If a member is required to file a report because of reasonable grounds obtained from one of the member's patients, the member shall use his or her best efforts to advise the patient of the requirement to file the report before doing so."
Can you perhaps give an example of where a member would obtain the reasonable grounds from the patient? Can you think of any scenario to put that into layman's language for me?
Ms Christine Henderson: I'm going to ask Ella to jump in here as well, if I get the scenario not quite right.
I believe this contemplates, as well as other situations, the kind of situation where in the course of an appointment, say, with Dr Jones, the patient reveals some incident of sexual abuse that occurred at a hospital involving Nurse Smith and because of the circumstances described by the patient, the physician at issue has reasonable grounds to believe that sexual abuse of this particular patient occurred --
Mr Jim Wilson: Would that not be hearsay in that case, though? What's the reasonable grounds test in layman's terms there? When you read the provision or when you scanned over it, it seemed to me that was a case where perhaps you're getting secondhand knowledge of potential abuse.
Ms Christine Henderson: It's hearsay, clearly; there's no direct observation in this case. If perhaps the patient also displays particular physical symptoms that could conceivably be caused by a fall down the stairs or some other kind of -- you know, along with a story documenting touching of a sexual nature, it's quite possible that particular physician might say, "These are reasonable grounds to believe the event occurred, even though I didn't directly observe this conduct."
Mr Jim Wilson: Okay, and the rest of that provision is -- there's a "shall." "The member shall use his or her best efforts to advise the patient of the requirement to file the report before doing so." Obviously, it's to ensure that the patient is aware of the process that's about to begin because the member at that time has reasonable grounds to believe that sexual abuse may have occurred. My reading of this is that the member's required to explain this process to the patient at that time, to say to the patient, "If we go further, here's what may happen to that physician who allegedly abused you." Is that what's to happen here?
Ms Christine Henderson: I believe that "shall use his or her best efforts to advise the patient of the requirement to file the report" means simply that. I don't believe it would entail discussion of a disciplinary process involving that particular member of a college who was the alleged abuser. What that speaks to, if you recall, is that the information that must be reported in the report includes the patient's name but only if the patient consents in writing to the use of her name. So in our scenario, I would imagine that --
Mr Jim Wilson: That's what would be going on at this point.
Ms Christine Henderson: This would be going on at this point. Of course, if there's no immediacy in terms of a threat to that patient or other patients perceived by the potential reporter, they have 30 days within which to use their best efforts to advise the patient about the requirement to file. But unless that patient gives consent, the name of that patient will not be included in that report.
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Mr Jim Wilson: May I, Mr Chairman, ask another quick question? Well, I guess none of the responses or questions are that quick. It is complicated legislation, no doubt about it. It's a serious matter, though.
Page 21, subsection 85.3(6): The confidentiality measures are contained earlier, so I'll ask you to refer to those in responding to this question. With subsection (6) at the bottom of page 21, a member is in psychotherapy. I'm just wondering about the therapist-patient confidentiality relationship. There's mandatory reporting here. What confidentiality provision is there? I know this is a sensitive issue with, as it were, perhaps one physician reporting another physician, and physician 2 is actually a patient. Can you explain the thoughts of the ministry there and the discussions with the CPSO with respect to that? I imagine that will come up again in the public hearings.
Ms Christine Henderson: You're right; that's a very critical policy matter. Because there was discussion about this and there have been submissions about this, I wonder if I could refer that question to Ella to help.
The Chair: Could you go to the table, please? We're being televised.
Mr Jim Wilson: You need a better camera angle.
The Chair: It just helps. That way, everybody's looking forward and not craning their necks. If you would be good enough to identify yourself, then please go ahead.
Ms Ella Schwartz: I'm Ella Schwartz. I'm a policy analyst at the professional relations branch.
We heard a lot of different considerations about whether a professional who was in therapy and trying to have his or her problem resolved ought to be the subject of a mandatory report. It's actually been very complicated. We've heard from some professional bodies that absolutely there should be confidentiality; other professional bodies have said no, it should be the subject of a report. Even within the professional bodies there has been debate. Interestingly, the task force report originally said to maybe not report and then came down in its final version and said that absolutely you have to report.
It's been a very difficult issue to resolve. How the ministry is trying to resolve it is, as you know, as both Christine and the minister said, we're going to take out any possibility of there being exceptions to mandatory reporting. You will have to report.
But what will happen with those reports is that eventually they end up at the executive committee, and the executive committee -- right at the top of page 10 of the consolidated report, subsection 36(2) -- is required to "take into account any opinion...as to whether or not the member who is the subject of the report is likely to sexually abuse patients in the future."
So you have the report, but what happens to the report is discretionary. You can take into account the fact that this member has been going to psychotherapy and the situation may be able to be resolved that way.
Mr Jim Wilson: Are there any guidelines for the executive committee at this stage?
Ms Schwartz: You mean about how the executive committee would determine that?
Mr Jim Wilson: Yes. The way I read this is that this is sort of the screening process prior to going to the disciplinary committee. I'm wondering what the criteria are, or are we going to wait for cases to develop their own criteria?
Ms Schwartz: What you've got on page 21 is what the executive committee has, an opinion of the member filing the report, if he or she is able to form one. That's at the bottom of page 21, subsection 85.3(6).
Mr Jim Wilson: So they will rely on the professional opinion at that point.
Ms Schwartz: They may rely on the professional opinion. That would be one possibility.
The Acting Chair (Mrs Yvonne O'Neill): Anything further, Mr Wilson?
Mr Jim Wilson: I do have others, but I'll yield the floor at this point, Madam Chair.
Mrs Haslam: On page 23, I'd like to know what constitutes in good faith. In the RHPA provisions, you are indicating that no action or other proceeding shall be instituted against a person for making a report in good faith under this section. I'd like clarification of your definition of "in good faith." And who makes the decision about whether this person has put that report out in good faith?
Ms Christine Henderson: Ultimately, the court would decide, in the event that there was a suit, but "in good faith" is generally considered to be a very broad legal test that embraces a very full protection for reporters. I would suggest that, unless a report were made with a malicious intent, the good-faith test would protect the reporter.
Mrs Haslam: You'd have to prove malicious intent in the court, though.
Ms Christine Henderson: Yes.
Mrs Haslam: So as your definition, it would have to be done in the courts?
Ms Christine Henderson: Right. In this context these provisions have not been judicially interpreted, but I think you can be assured that this is a very broad test, "in good faith," and the intention is to provide reporters with a very broad immunity from civil suits, as there must be in order that there be compliance with the mandatory reporting obligation. This is in fact a very broad immunity.
Mrs Haslam: That's all I had at this time.
Mr Bernard Grandmaître (Ottawa East): As a follow-up to Ms Haslam's question, I accept what you're telling me about a report in good faith, but is there a mechanism in place that would ensure that this report is more than good faith, that it is factual?
Ms Christine Henderson: I guess the mechanism is that before a report is made, there must be reasonable grounds for the reporter to believe that sexual abuse, as defined, actually occurred.
Mr Grandmaître: So I suppose every report would be made in good faith, right?
Ms Christine Henderson: It's hard to speculate on your question. I guess you're suggesting that there may be individuals who, for purposes of retribution, would make a malicious report?
Mr Grandmaître: Yes. Is there a mechanism in place to ensure that these reports don't become public, for instance?
Ms Christine Henderson: Yes, there are confidentiality provisions around information that is submitted to colleges; absolutely. I would think someone would take their reporting obligations very seriously. Maybe I'm being naïve, but I would find it incredible that someone would maliciously report another individual. The reporter's name forms a part of that report as well.
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The Acting Chair: I understand, Ms Bishop, you'd like to comment on this as well.
Ms Patricia Bishop: Yes, I'd like to pick up on this issue. The question really leads one to an examination of the complaints investigation. At that point of course there are a number of strong procedural safeguards in place at the College of Physicians and Surgeons, to take an example, but at any professional college, such that the report would be received either in writing or over the telephone, it would be documented, there would be an investigation of the person who reported, of the circumstances, of all of the facts surrounding the case. Only at that point, when all the facts were marshalled, would the college then decide to proceed or not to proceed to discipline. It would be a very full airing of the facts.
And one might note that historically, with regard to the College of Physicians and Surgeons of Ontario, a very small number of complaints proceed to discipline. I think most survivors would say a shockingly low number of complaints proceed. In general, I think the public would wonder why more complaints don't proceed rather than why so many do proceed.
The Acting Chair: Ms Schwartz, you have something also to add on this one?
Ms Schwartz: Yes. This is probably clear but I just wanted to repeat it. The section we're talking about, 85.6, deals with the reporter and whether the reporter made the report in good faith and whether the reporter can be prosecuted for making the report in good faith. It doesn't deal with whether the person actually did what they're alleged to have done. That goes through the whole complaints and investigations process, and as Patricia was saying, there is a very careful procedural description of that.
What this is saying is that if you have reasonable grounds and make the report in good faith, you're just the reporter who believes it happened. No one can take you to court for making the report. It's not a question about taking the member to court for having done that thing they're accused of.
Mr Grandmaître: So really the mechanism is the college?
Ms Schwartz: The mechanism for determining whether the incident happened?
Mr Grandmaître: Yes.
Ms Schwartz: Exactly. That's the college's complaint and discipline proceeding, and that's not what this is addressed to.
Mr Grandmaître: If the college, for instance, disagrees with the reporter, what other mechanisms are there in place for the reporter to pursue?
Ms Schwartz: The college could disagree with the reporter and say it didn't take place but recognize that the reporter validly thought so. If the reporter finds that, say, the complainant doesn't get satisfaction through the college, they can go to civil court, and, depending on the nature of what they're alleging, they could try criminal court.
Mr Grandmaître: What if the college reports back that the report was not in good faith and that's it; that it's out of the question and the incident will not be considered? Can this reporter be sued?
Ms Schwartz: That the reporter just made it up because he has this thing against the member? Yes, and the reporter could probably also be prosecuted under their own college for not acting according to the standards of the profession.
The Acting Chair: Mr Wilson, you have further questions?
Mr Jim Wilson: Yes. On the same page, page 23, it says, "MOH is considering allowing the college in appropriate cases to refer members accused of sexual abuse under clause 1(3)(c) to assessment and possible remediation rather than to discipline." In the minister's remarks it's made it very clear that there's one definition of sexual abuse that has three parts, so to me this sounds like you can be found guilty of sexual abuse and there are different sanctions that can be applied. It seems to me that what that says is that if you're found guilty -- and I'm not saying I disagree with this; I'm just asking a question -- of sexual abuse under part 1(3)(c) of the definition, there is this option: to not necessarily proceed to discipline but assessment and remediation.
It's been sold that there's only one level. Groups, particularly survivors, that have told me there's only one level are going to be concerned. They haven't read the act, because the act is, on the surface, one level, but it's divided up into nice little things. I think we should be honest about that and get that out now and find out that there are different levels here and that different sanctions apply.
Ms Christine Henderson: You're absolutely right. The reporting of sexual abuse under 1(3)(c) has been a contentious issue with some of the professions and associations, not all.
This was a subject of a conference with Dr Gary Schoener, who was a specialist in the area of sexual abuse. In answering a question from a member of a college, he said that in his view it was absolutely necessary to require reporting of incidents of 1(3)(c). His view, however, was that the disciplinary route may not always be the way to deal with such cases of sexual abuse. Yes, they're serious; yes, they sometimes indicate that a member of a college has serious problems and may proceed to commit other kinds of acts of sexual abuse. Or it may be someone who is not really living in the 1990s and needs some sensitivity training, needs some communications skills updating; the disciplinary route may simply be unhelpful in such cases.
So we were left to deal with the problem of serious incidents of behaviour or remarks that are demeaning, exploitative or seductive, of a sexual nature, and a mandatory obligation to report them, but with perhaps a lack of options to effectively deal with these kinds of cases. What the government proposes to introduce in the motion would provide colleges with the discretion to deal, in appropriate cases, with these matters by means of an assessment and by means of a tailored program to suit that particular individual's needs.
Mr Jim Wilson: Then with respect to the wording that's been provided on page 23 -- I guess we have only three days of public hearings or something. I'm not comfortable with just leaving that as it's worded here. When can we see the ministry proposals for that? I appreciate the ministry's problem here and at this time probably agree with the direction you're going. But upon reading, I think some people who clue into this are going to be worried about it.
Ms Christine Henderson: I don't have any specific instructions, but I think we'd be ready next week to share them with you. We certainly want to give you enough time to consider them fully and to examine them.
Mr Jim Wilson: I have another question, a quick one. This is page 13, dealing with fines. I may be right out to lunch on this one, but we had a lot of discussion with groups and individuals about the fines perhaps going back to the colleges or something to help pay for survivors' therapy or whatever might be required. I know that's not the case here and the colleges are left with coming up with their own schemes with respect to funding the survivors' -- what are we calling that, the $10,000 worth of treatment that can be used? What is that called?
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Ms Christine Henderson: The funds for therapy or counselling.
Mr Jim Wilson: Yes. There was another name Marilou used to use, and I think I actually introduced something in the House with respect to this. I can't keep up with my own work.
This $35,000 fine mentioned on page 13 isn't any different from the RHPA, except it's higher. The money still goes to the Minister of Finance. Do you want to explain that to me? There are a lot of groups who are going to wonder why the Minister of Finance makes $35,000 when someone's convicted of wrongdoing.
Some of the groups we're dealing with, I think it's fair to say, don't realize that most fines do go to the province of Ontario. Particularly with respect to this, though, they thought it was going to go back to help survivors.
Ms Schwartz: Because of the way the consolidated revenue fund is organized, money that comes in doesn't get targeted towards something specific; it gets put into the general fund and then gets put out. It would be quite precedent-breaking, as I understand it, for the Ministry of Finance. It would also be quite precedent-breaking for the Attorney General to take a fine from an administrative agency, which is what this is, and have a fine go back towards the purposes of that agency rather than into the consolidated revenue fund.
It would also not necessarily meet the needs of the program, because some people, we've discovered -- an unhappy story -- actually abuse more than one person. They can abuse many people, and $35,000 is three and a half people. If you get someone who has abused 20 people, and we've encountered them recently, this wouldn't cover it.
What we tried to do was address the issue which we felt was underlying this, that the money should come first of all from the abuser, not necessarily through the fines. We addressed that in various ways, and one way was exactly that, on page 13, that the discipline committee could require the member to reimburse the college and could also even require the member to post a bond for all the money the member might be liable for. Also, there are regulation-making powers at the back to require the member to maybe carry insurance for this kind of thing.
Mr Jim Wilson: Let me see if I'm clear. It's the colleges that will pay for the victims compensation fund and the $10,000 maximum for the therapy.
Ms Schwartz: First of all, the college will go after the person who's been found guilty of abuse, and only if the person who's found guilty of abuse doesn't have the money will the college have to pay. The first person you turn to is the abuser.
Mr Jim Wilson: But the college pays the $10,000. Why does the province get $35,000? You're not putting any money into the victims compensation fund. It seems a little unfair to me.
Ms Schwartz: The college pays the money and gets reimbursed.
Mr Jim Wilson: Is that true?
Ms Schwartz: That's what we said on page --
Mr Jim Wilson: But gets reimbursed by the abuser, not by the government. The government makes money on this through the normal fine system.
Ms Schwartz: Right, the normal fine system is in place here.
Mr Jim Wilson: I bring this out because I just met with a group that thinks this $35,000 is going into the victims compensation fund, and it's not. The government doesn't pay for anything. The colleges, the individual members, through whatever method they come up with, pay the $10,000 worth of therapy that may be required. Is that true?
The Acting Chair: Ms Bishop, you seem to want to say something about this. Would you like to do that formally?
Ms Bishop: Yes. Mr Wilson is correct in that the $35,000 fine would go to the Minister of Finance. In fact, Ella did extensive investigations over the course of the last nine months, I would say. Because consumer-survivor advocate groups had approached us and said, "No, there is a matter of justice being done and seeing that justice is done, and we'd really like this money to go to the survivors" etc, Ella did an incredible amount of investigation and found that, bureaucratically speaking, and unfortunately we do operate within this bureaucracy called government, it really is not feasible to do that. We really tried hard but we could not find a mechanism to allow that to occur.
The Acting Chair: Have you got a comment, Mr Wilson, or do you have another question?
Mr Jim Wilson: No. I think that comment stands on its own.
The Acting Chair: You've completed your questioning then?
Mr Jim Wilson: Yes. Thank you.
The Acting Chair: Do you have another comment, Ms Bishop?
Ms Bishop: Yes. I wanted to respond to the second-last issue that Mr Wilson raised regarding referring certain cases to assessment and possible remediation.
You're quite right, the wording is vague at this point. For your information, the ministry conducted a meeting with both professionals and survivors in late October to see what the feeling was about this issue. In fact, survivors and professionals seemed to be equally supportive of this mechanism, and the challenge now is to get it right.
I'd also like to point out though that it does allow us to put forward a somewhat broader net in that individuals who are accused, and then there's an investigation and facts are known, but perhaps the name of the survivor, of the complainant, is not available or is not permitted to go forward -- she says, "No, I don't want my name to go forward," -- nothing could occur in that case, as you know. Under this regime, something could occur. So in many cases, it will allow the colleges to be more proactive than they could otherwise be.
Mr Jim Wilson: Can I respond to that?
The Acting Chair: Is it directly related to this?
Mr Jim Wilson: Yes, directly. I am pleased to see the government's come around to that, because I recall having a much different discussion some time ago.
Correct me if I'm wrong again, but to me also, in addition to what you've just said, which I think is quite correct -- I know the wording is tricky here -- to be absolutely politically correct, clause (3)(c) says "behaviour or remarks of a sexual nature by the member towards the patient." It's the least sexual abuse; none the less it is sexual abuse.
I had a very strong concern that, had you not pursued what you just described, in fact, patients may have felt inhibited from coming forward, saying: "My doctor really has to clean up his act. His jokes are inappropriate, his talk is inappropriate, but I don't want the poor guy to lose his licence, so I won't report him." What you're telling me is this will allow another mechanism, so he may not necessarily lose his licence but action will be taken.
Ms Bishop: That's exactly the idea.
Mr Jim Wilson: I appreciate that.
Mr Stephen Owens (Scarborough Centre): I'm sorry I missed the first part of the briefing. Under section 73, the issue with respect to reinstatement, could you talk to me about that?
The Acting Chair: Mr Owens, could you refer to the page? We've been doing that.
Mr Owens: Sorry. Page 16.
The Acting Chair: Thank you. Do you want to rephrase your question, just so we'll get the answer you're looking for?
Mr Owens: In terms of reinstatement of a professional who has been found guilty of sexual abuse, I'd like to hear a little bit more about what the thinking is in terms of the conditions on which that professional's readmission would turn, the kind of philosophy that's going into the thinking on this.
When I read the statements that are provided in the explanation, I feel some level of discomfort. There are clearly two schools of thought out in the world these days: an abuser is an abuser is an abuser, or the second school of thought is that a person can be rehabilitated. I guess I'm not clear on the direction that the ministry is looking to provide to the colleges on this issue.
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Ms Christine Henderson: The reinstatement conditions would form part of a regulation college councils would make. The ministry's position, in answer to your question, is that the best way to approach this question is to accept the recommendations of the task force report. Those recommendations, generally speaking, are set out in what you see before you at page 16 at the bottom.
Mr Owens: Right.
Ms Christine Henderson: You have to remember that when the member's certificate of registration is revoked for sexual abuse of a patient, what this bill and the amendments do is say that this is an extremely serious matter. This revocation will be in place and the member will not be permitted to apply for reinstatement of his or her certificate until five years have elapsed.
I'm sure Ella or Patricia can give us more information, but the survivors and the advocates for the survivors' groups were very, very clear that if someone's certificate of registration has been revoked for reasons of sexual abuse, there should be very strong consideration given as to how this person has been rehabilitated, about what steps they have taken to rehabilitate themselves. Yes, I think what you're saying is that these conditions are tough, and the ministry's position is that they ought to be.
Mr Owens: My concern quite frankly is that they may not be tough enough. I guess that in terms of understanding the five-year period -- and maybe a policy person is better -- why was the term five years chosen? Is there a particular magic about that time period, or was it felt that five years is an onerous penalty and that after that period the practitioner should be able, if interested, to demonstrate that he or she has been rehabilitated?
Ms Schwartz: I think it was felt that, as you said, mostly an abuser is an abuser is an abuser, but there could be some cases -- research is very preliminary on this in the psychological field, but they have found that in some cases an abuser may be able to be rehabilitated, although it's very rare. But we wanted to leave the door open for those few cases that an abuser could be rehabilitated.
We wanted to make sure that the conditions of reinstatement were very strict, and frankly we don't think they'll be met that often, probably hardly ever, but we did want to leave open the door that sometimes, under some circumstances, a person could come back to practise. Five years is a long time when you haven't practised your profession, and it could be very unlikely just because it's five years. If for no other reason, if there's no other conditions, even that would make it unlikely that you'd come back.
There are all these other conditions and other things you'd have to prove, but we couldn't really shut the door altogether. We wanted to keep it open a little bit so there could be a possibility of reinstatement.
The Acting Chair: Ms Schwartz, you've just made a very general statement and it could be considered a very serious statement. Have you got data to back up the statement you just made regarding rehabilitation possibilities? I think it's a very important issue in this matter and I think we should try to see if you have those kinds of data.
Ms Schwartz: That it's unlikely that a person could be rehabilitated?
The Acting Chair: Yes. Have you got data for that?
Ms Schwartz: There isn't much data available on that. We don't really know. The data that are available seem to show that, but there isn't much data available on it altogether. One of the reasons we wanted reinstatement provisions is that the research on this, as I said, is in such a preliminary stage.
Mr Owens: I think, if I can maybe add some supplementary information -- and I'm certainly not an epidemiologist or a researcher -- in terms of the issue itself, it's only very recently that it's become an issue qua issue that's actually out there in the public minds. That's not to say that these problems haven't been going on for a long, long time, but in terms of quantifying them for the purposes of gathering data, my assumption is that it hasn't been yet put to researchers to look at this issue.
Ms Schwartz: I think people are just now beginning to look at the different circumstances under which a person might commit this kind of abuse, or the different categories of people who might commit this kind of abuse. As I say, it's at a very preliminary stage.
Mr Owens: I guess in terms of, again, the return of licence to practice, would you be looking at if in fact all the criteria were met? What would you be looking for in terms of demonstration that no further abuse is likely to take place in terms of the broader legal terms that we're looking at: likely and reasonable and --
Ms Schwartz: I just wanted to add that one of the reasons we really would say an abuser is most likely to continue abusing is that the kind of education or counselling that a person would need to learn how to stop this has only begun to be researched. We really don't know how to correct the situation. It's not saying that never in the history of people will this situation change, but we've only begun to research how to deal with this, so we really don't know how to treat these people so that they'll improve.
We would look at the kinds of things we have here partly to see that this person has changed their own situation and own feeling so they won't continue to abuse and also partly to maybe put restrictions on their practice so they won't have the opportunities to abuse.
Ms Christine Henderson: If I may add, what you cannot do is irrevocably bar someone from the possibility of ever regaining the chance to practise their career again. While the ministry believes that the reinstatement conditions must, as far as it's practicable to do so, try to ensure that the person who is admitted back to the practice will do so safely and with the public's protection foremost in the minds of the college, there cannot be a complete prohibition for ever from practice, simply on the grounds of fairness and administrative law principles.
The Acting Chair: You wanted another question, Mr Owens?
Mr Owens: Just to take a slightly different tack: In terms of the minister's statement with respect to advocacy and support of complainants, this is an issue I've been working with since coming to this place; that is, the RHPA. This is clearly a concern of mine in terms of yes, we can set out this bill. In my view it's a reasonable bill that attempts to deal with some tough issues. My question, though, is that in terms of dealing with the complainants, what is the process or the system going to involve with respect to advocacy? Will there be a process for an advocate to be involved?
I couldn't find anything in the amendments. Is that something that will come in the regulations? Will there be, through the regulations, a duty placed upon the college with respect to the provision of advocacy, to the provision of materials in languages other than English and French? What kinds of support will the colleges be mandated to give people?
The Acting Chair: Who'd like to try that one? Ms Schwartz, have you got any idea about that, or Ms Henderson?
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Ms Schwartz: I think it would be left to the college to determine how best to do that. One of the ways would be through the patient relations program, which actually has been in the RHPA since the RHPA was passed. It was added to the RHPA at second reading.
Mr Owens: I remember the debate that Wilson and I had about the patient relations committee.
Ms Schwartz: That's one of the things the patient relations committee is supposed to look at.
Mr Jim Wilson: It's "Mr" Wilson.
Mr Owens: Sorry, Jim.
Ms Schwartz: It's supposed to be reviewed by the Health Professions Regulatory Advisory Council, so that while it wouldn't come under regulations, it would certainly come under close scrutiny to see that they were doing things properly.
The Acting Chair: Anything further?
Ms Christel Haeck (St Catharines-Brock): Actually, it's on a similar point to the one Mr Owens raised with regard to the possible reinstatement of an abuser. I guess I can't say that in any nicer way.
I have had the opportunity in my constituency office to meet a patient who was abused and expressed a very serious concern about the fact that the particular practitioner had lost his licence once, in fact ended up being reinstated, and had abused again. You're not talking a single incident; you're talking a number of people who were abused by this particular practitioner, and the licence to practice has been removed. I can only tell my colleagues here that on behalf of that patient, there is a great fear that the person will be reinstated at some time and therefore will be able to do this again to other people.
I understand, Ms Henderson, that there is a range of reasons that you've expressed around the issue of someone -- shall we say that there is some hope, however slim, of rehabilitation and that one cannot be barred for ever from his or her chosen career. However, if someone has twice in a 10-year period so seriously abused, and you're saying in five years' time this person could apply for reinstitution of his licence, I have some serious problems with that. I have some very serious problems with that, even realizing that it is rare -- sorry for any psychologists who are here. I'm not a psychologist, but I would say that there is frequently debate within the psychological community about assessments as to the state of one individual.
You have here in the column "proposed government amendment" item (4): "proof to substantial degree of medical and psychological certainty of no future abuse." I'm wondering with what surety anyone can -- and if you're only using one report, to what degree one can feel sure that someone who has done this dastardly deed would not be allowed to get out there and do it again.
The Acting Chair: You'd like to comment, Ms Bishop?
Ms Bishop: Yes. I'd like to point out in reference to the question that the CPSO task force did thoroughly investigate this area, and also in response to Ms O'Neill's question regarding the data and the seriousness of Ms Schwartz's statement, the task force did a very thorough check of the literature and of course talked to many experts in the field over the course of its work. They were, of course, totally independent of this government and relatively independent of the College of Physicians and Surgeons, and in fact they developed these criteria.
It's clear here that the onus is on the member who has lost his certificate of registration to demonstrate that he has been rehabilitated, and there are very stringent criteria for that, so that under this regime it will be difficult for an individual to be reinstated, although there will always be that possibility.
What we've seen in the cases that have reached the press lately has demonstrated that individuals have abused clients over a career and oftentimes it's only towards the end of their career, maybe because we're increasingly alert to this, that they are brought to justice. I think we're very aware that we don't want to revictimize other members of the public and allow this to continue.
Mr Jim Wilson: I just had a question that is in no way meant to be unfair, but with what we know about the extent of sexual abuse out there, would anyone have a guess -- and I won't hold anyone to it -- as to how many RHPA professionals might end up at the end of the day having their certificate of registration revoked?
Ms Bishop: I don't think anybody would have the faintest idea, fortunately or unfortunately. It's really hard to know. You can go on the data supplied by the CPSO, which is physician-based data, that suggest that somewhere around one in 10 physicians may be guilty of some form of sexual abuse, but that's the gamut. It's really hard to know how specific you could get, you know, how predictive you could be.
Then there are all the other health professions. They have a variety of relationships to their patients. Some have a very distant relationship, whether it's, say, fitting eyeglasses or something of that nature on a once-only basis or an ongoing psychotherapeutic relationship. It would depend on the nature of that therapeutic relationship as well.
The Acting Chair: Ms Schwartz, do you want to add something, please?
Ms Schwartz: Yes. We're also hoping that this legislation will change the statistics because more people will come forward to report, being aware of the problem, and hopefully fewer people will engage in this activity, being aware of the problem. Also, a person might be caught earlier, before they've gone on to do this with more of their patients. This legislation, we hope, will really change the situation. We really can't predict.
The Acting Chair: Anything further?
Mr Jim Wilson: No.
Ms Bishop: I just had one further point. I just thought of the report of the College of Physicians and Surgeons of British Columbia, which I'm sure you're somewhat familiar with. We could in fact bring for the committee, if the committee desired, a synopsis of that report, which does delineate to a certain extent the nature of abusive relationships between different kinds of physicians, psychiatrists seeming to be at the top of the list of problems, unfortunately. We could bring that for your information if you would like that.
Mr Jim Wilson: I'd appreciate it, because in all the myriad of stuff we've read, I'm not familiar with that one, or it doesn't come to mind right away.
The Acting Chair: Ms Haslam, would you mind taking the chair so I could ask a couple of questions?
The Acting Chair (Mrs Karen Haslam): Are there any other further questions? The Chair recognizes Mrs O'Neill.
Mr Jim Wilson: Isn't there a conflict of interest?
Mrs O'Neill: Maybe a little bit. If I may go back to page 16, where we were talking at quite a bit of length about rehabilitation -- I'm sorry; as you know, I haven't been part of the briefings and the work that you've done all summer -- I thought I heard, as you went through that, 10 years somewhere. Was that one of the considerations?
Ms Christine Henderson: No, that's the length of time that information must remain on the college register made available to the public if in fact a member of a college has been found to have committed sexual abuse constituting either 1(3)(a), which would be physical sexual relations, or 1(3)(b), which would be touching of a sexual nature. The information must remain on the register and available to the public for 10 years if a panel of the discipline committee makes such a finding against a member.
Mrs O'Neill: Will the process be regulated for all of the colleges to have that process? I doubt they all have the process in place at this point.
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Ms Christine Henderson: Right. No, these statutory provisions would make that a requirement.
Mrs O'Neill: Okay. Now, if I may go to page 19, you did remove the "incompetent" and "incapacitated" as you worked your way through this. Would you like to make a comment about that for me, please, why you did that?
Ms Christine Henderson: One of the reasons was to focus upon sexual abuse of patients by members.
Professions also pointed out some practical difficulties with, for example, the issue of incompetence. A nurse observing a massage therapist may misinterpret what the practice of that profession really entails and may believe that the person was committing an act that looked like an act of incompetence in regard to a particular patient. The fact that designated acts of professional misconduct would have to be made by a college council, put in regulations, and that these provisions would have required the nurse to know what the designated acts of professional misconduct that would be reportable in the massage therapists' regulations would be, and across all of the professions -- as a matter of implementation, it really didn't look like the kind of workable scheme that the ministry wanted this to be.
Mrs O'Neill: All right. If I may just follow that up, then, I know this bill is very specific in some ways. Is there going to be a mechanism or is there at the present time a mechanism for interprofessional reporting of incompetence, or is that always going to be impossible?
Ms Christine Henderson: Well, nothing would prevent a nurse from contacting the registrar at the College of Physicians and Surgeons and reporting a particular act performed by that physician.
Mrs O'Neill: So the mechanism is there at the present time?
Ms Christine Henderson: Yes, he or she could do that.
Mrs O'Neill: Okay.
Ms Christine Henderson: The mandatory aspect of that requirement has been removed.
Ms Schwartz: I just wanted to add that the mandatory aspect could be in time added if the college decided to make it a ground of professional misconduct. So there is that flexibility there for the future.
Mrs O'Neill: Okay. If I may go down to the bottom right-hand corner of page 19, regarding the exemptions, I'm having a little difficulty again because of not being part of the discussions regarding exemptions of these family members. Do you want to put that into context for me, please?
Ms Christine Henderson: The ministry is proposing to delete the ability of college councils to make regulations that would exempt any individual members from the reporting scheme. So these provisions would be struck out under a motion that has not yet been tabled, but the government intends to not support these provisions.
Mrs O'Neill: So in the bottom right-hand corner, you're saying those exemptions would not stand.
Ms Christine Henderson: That's right. There would be no exemptions to the requirement to mandatorily report sexual abuse of patients.
Mrs O'Neill: Okay. I guess page 20 was the same question.
On page 21, under the 30-day provision, there is an exception there, "reasonable grounds to believe." How serious would that have to be, or who is going to determine the reasonable grounds that this is going to happen and that 30 days is too long?
Ms Christine Henderson: It would have to depend, I would think, on the circumstances in the particular case that a reporter is met with. It's difficult to give you a specific in the absence of a factual situation, but I believe if there were any threat that the reporter believed might be there for that particular patient or other patients, the report should go immediately.
Mrs O'Neill: So you think the judgement would be made in favour of the reporter. I guess what I'm thinking about, and what Ms Bishop's alluded to, is that 30 days is a very short time in the business of quasi-judicial government, whatever you want to talk about, and I'm wondering if we're being realistic. I guess you're telling us that if there seems to be an emergency, so to speak, it would go in favour of the reporter, but then it's kind of judging before the fact, which is always another problem.
Ms Christine Henderson: I think the reporter would also have to consider the fact that, as part of the report, the name of the patient is to go in if the patient consents. I believe one of the considerations given to permitting the 30 days to elapse was trying to work with that individual patient to get his or her consent.
None the less, the nature of the subject, namely an allegation of sexual abuse, is very serious. I believe it was felt that 30 days was a reasonable time to have elapsed to get that patient's permission or consent, but that there was an urgency around making such a report because it involved sexual abuse of patients.
Mrs O'Neill: I think this is relevant, and it'll be my closing remark. I understand at the present time the College of Physicians and Surgeons, if it is unable to obtain consent, keeps the report, and if it gets another complaint about the same practitioner, it informs the original complainant in case the person does not want to stand alone. I don't know whether that's what is envisioned here as well or whether that's just going to be part of the practice of that college.
Ms Christine Henderson: I'm not sure about the internal processes of the College of Physicians and Surgeons. It may be that as part of any college's investigation of a particular allegation, whether it be through an earlier report that did not proceed to discipline or simply through the investigatory process, other patients' names arise. It may be that patients are found, other individuals who may have been abused are located through the investigatory process, either through earlier reports or through the natural processes of investigation. That could very well happen.
Mrs O'Neill: That completes my questions.
The Acting Chair: Were there any other questions by any of the other members?
Mr Grandmaître: Yes. I want to go back to an earlier question by Ms O'Neill.
On page 19, you deleted clause 85.1(1)(c) and (d):
"(c) is incompetent; or
"(d) is incapacitated."
If I turn to page 21 and look at clause 4(4)(c), "an explanation of the alleged sexual abuse, misconduct, incompetence or incapacity..."
The Acting Chair: It's been struck out, Mr Grandmaître.
Mr Grandmaître: It's been struck out. Thank you very much. I've answered my question.
The Acting Chair: You are a wise man who can answer his own questions -- or a fool, they say. Are there any other questions? Fine. Then do you want to come and close the meeting or do you want me to close the meeting?
Mrs O'Neill: I think I have some instructions. I don't know if we have the same ones.
The Acting Chair: To meet tomorrow at 3:30, and the committee is not meeting now, they're meeting later? Did I steal your thunder?
Mrs O'Neill: We have more, so I guess I should get in the chair and do it formally.
The Acting Chair (Mrs Yvonne O'Neill): I guess the instructions have changed since I was here at the last moment, but we will definitely have some decisions to make in this committee regarding the hearings and I understand we will be having the subcommittee meeting some time between now and 3:30 tomorrow afternoon, when we will meet again. We have our list of presenters for tomorrow, and I hope we can start on time, because, as you know, there are far more presenters than are now slotted and your phones must be ringing, as are mine, and we would like to begin on time tomorrow, if possible.
With that, I adjourn this day's session of the social development committee.
The committee adjourned at 1731.