Transcription du comité 1993-nov-29 | Assemblée législative de l'Ontario

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, M^me Grier

Canadian Bar Association--Ontario

Tony Caldwell, member, executive committee, health law section

Linda Bohnen, member, executive committee, health law section

Joan MacDonald, member, feminist legal analysis committee

College of Nurses of Ontario

Pat Mandy, council president

Elisabeth Scarff, director, policy analysis and development

Spiricoasis

Alex Perlman, president

Ontario Medical Association, Section on Psychiatry

Dr Patrick Conlon, chairman

Dr Judith Hamilton, executive member

Stasha Novak

Med-Aware Publications, Patient Advocacy Issues

Elizabeth Rankin, president

Sharon Danley

Ontario Psychiatric Association

Dr Joan E. Bishop, president-elect

Dr Brian Hoffman, chair, legislative review committee

I Know Network Ontario Cosmetic Surgery Health Information Inc

Kathleen Lumsden, president and co-founder

Elayne St Pierre, member

Barbara Kerr, member

Feminist Working Group on the Criminal (In)justice System

Susan Bazilli, coordinator

Ontario Massage Therapist Association

John Sanderson, executive director

Ontario College of Pharmacists

Madeline Monaghan, president

Christina Langlois, manager, patient relations

Board of Radiological Technicians

Janet Morgan, past-chair

Debbie Tarshis, legal counsel

Sharon Saberton, registrar

Ontario Naturopathic Association; Drugless Therapy--Naturopathy

Dr Patricia Wales, executive director

Dr James Spring, board chairman

College of Optometrists of Ontario

Dr Martin McDowell, assistant registrar

Dr Irving Baker, registrar

Alexander Franklin

Society of Independent Community Pharmacists of Ontario

Jerry Taciuk, chief executive officer

Andrew Musial, president

Continued overleaf

Continued from overleaf

STANDING COMMITTEE ON SOCIAL DEVELOPMENT

*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

Mathyssen, Irene (Middlesex ND) for Mr Hope

Wessenger, Paul (Simcoe Centre ND) for Mr Martin

Also taking part / Autres participants et participantes:

Ministry of Health:

Henderson, Christine, legal counsel

Schwartz, Ella, policy analyst, professional relations branch

Wessenger, Paul, parliamentary assistant to the minister

Clerk / Greffier: Arnott, Doug

Staff / Personnel:

Gardner, Dr Bob, assistant director, Legislative Research Service

Swift, Susan, research officer, Legislative Research Service

The committee met at 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): Ladies and gentlemen, we begin our hearings on Monday, November 29, on Bill 100, An Act to amend the Regulated Health Professions Act, 1991. We have a very full schedule for this afternoon and this evening.

If I could just note for members and for those in the audience, we will have to go to a vote at approximately 5 o'clock, but that will not affect the time allocated to everyone, although it may affect whether we get to you quite at the time that's set on the schedule. But I think there's a bit of flexibility in it and I just would say again that everyone who is to be heard today, this afternoon and this evening will be heard and we'll try to minimize the time when we have to be out of this room.

CANADIAN BAR ASSOCIATION -- ONTARIO

The Chair: Without further ado, then, I call upon our first witnesses, from the Canadian Bar Association -- Ontario. If you would be good enough to come forward and identify yourselves for Hansard and for the committee, I'll just note that there's one person there who has often been at a different part of the table. We welcome you back to the committee, Linda.

Ms Linda Bohnen: Thank you.

Mr Tony Caldwell: Mr Chair, members of the committee, my name is Tony Caldwell and I am a member of the executive committee of the health law section of the Canadian Bar Association.

Ms Linda Bohnen is with me, as you're well aware. She also is here in the capacity of an executive member of the health law section of the Canadian Bar Association. Also with us is Ms Joan MacDonald, who is a member of the feminist legal analysis committee, which is a section of the Canadian Bar Association.

The written document which is before you is a joint submission on behalf of both the health law section and the feminist legal analysis committee.

Following my introduction, Ms Bohnen will deal with the issues of the definition of "sexual assault," the participation in discipline hearings and in that process, and the cost aspect of the submission. Ms MacDonald will then deal with mandatory reporting.

The purpose of this submission is to provide the standing committee on social development and the Minister of Health with comments on important legal policy issues raised by the Regulated Health Professions Amendment Act, 1993.

While the Canadian Bar Association supports the overall objective of Bill 100, which is to try to prevent sexual abuse of patients by health professionals and to deal with it appropriately and effectively when it occurs, the Canadian Bar Association is concerned that this laudable objective not be achieved at the expense of other principles that our society cherishes.

We believe that we must be especially vigilant when a statute grants extensive powers to agencies of government and when the exercise of these powers may have a significant impact on individual rights. Regulatory colleges established under the Regulated Health Professions Act are agencies of government and the exercise of the powers granted to them under both the 1991 act and the act under consideration now will have a significant impact on the livelihood, reputation and personal property of these regulated health professionals.

The CBAO therefore wishes to bring to the attention of the standing committee on social development several features of Bill 100 that we find especially troubling.

Ms Bohnen: It's nice to have the opportunity to try to influence the legislation from this side of the table.

I'd like to start by commenting on the definition of "sexual abuse" in the bill. As you will have observed, it's an extremely compressed definition that is expected to cover a very wide range of behaviour that occurs in a wide variety of professional relationships. It's important that this definition be an apt and appropriate one, because the strength of the bill proceeds from that definition.

Firstly, it is for this reason that we don't support the government amendment that has been tabled that would remove subsection 3(4) from Bill 100. That subsection would give college councils the authority to make regulations that clarify or extend the statutory definition of "sexual abuse." We think this authority is necessary, because it's unrealistic to think that a single statutory definition could adequately define a matter as complex as sexual abuse, especially when we remember that this legislation applies to 24 regulated health professions. Colleges must be able to make regulations to ensure that the definition is applicable to their members, their members' scope of practice and the nature of their relationships with their clients and patients.

We do support the government amendment to amend the third element of sexual abuse, which relates to remarks and non-physical behaviour of a sexual nature, to that which is "demeaning, seductive or exploitative." We think this is a very positive step that will enable everyone to understand just what is offensive.

But other refinements are necessary as well, and we'd like to bring to your attention our view that if the relationship between a patient and a professional is not characterized by trust and dependency, then a sexual relationship outside the treatment setting may not be inherently abusive in the case of every regulated health professional; rather, it will depend on whether or not there is exploitation.

For these reasons, we propose the definition that you find on page 2 of our written submission, which would include in that definition the issue of exploitation, so that sexual abuse would mean any act of a sexual nature in which the member exploits the patient, and then include the three elements that you see here.

The significant changes lie in (a) touching of a sexual nature without the patient's consent, ie, sexual assault, and (b) sexual intercourse, other forms of physical sexual relations and touching where, as a result of the professional relationship, the patient is in a position of trust and dependency.

Again, we believe this statutory definition should be supplemented by profession-specific regulations. A college council might, for example, make a regulation that prohibits all physical sexual relations between members of the profession and patients on the basis that relationships between members of that profession and their patients are always characterized by trust and dependency. Such a regulation could also address the period of time during which an individual is considered to be a patient because of continuing emotional dependency on the professional even after purported termination of the professional relationship.

I'm going to turn to the issue of participation in discipline hearings, which starts on page 3 of our written submission. As you know, right now the parties to a discipline proceeding are the professional and the college. Bill 100 would enable the panel of a discipline committee to permit non-parties to participate when in the panel's view that would be of assistance to it or where the non-party's good character, propriety of conduct or competence is at issue.

We think this is a mistake because it will pose an unacceptable risk of procedural injustice to accused professionals, and that risk is enhanced by the fact that the section provides virtually no direction to committees as to how their discretion to permit participation should be exercised. Nor does it provide that the fairness of the hearing must be the paramount consideration. Equally importantly, it poses the risk of confusing and therefore weakening the college's case, resulting in acquittals of members charged.

We do, however, strongly support the use of victim impact statements and we believe that the patient should have the option of making an impact statement orally or in writing, or both. For that reason, we would recommend a small amendment to the government-tabled amendment to subsection 11(3) of the bill to permit either oral or written impact statements, or both, at the option of the patient.

Costs: Bill 100 would authorize the discipline committee panel to order a professional who is found guilty of professional misconduct or incompetence to pay part or all of the college's legal costs. However, under section 53 of the existing act costs can be awarded to a professional only where the panel finds that the commencement of the proceedings was unwarranted. Under the tabled amendment, costs could be awarded against a professional in any circumstance and those costs could include legal costs, investigative costs and hearing costs. It's true that the general rule of civil proceedings is that legal costs are awarded to a successful party.

We think that whether this rule should be applied to college disciplinary proceedings is too important and large an issue to be resolved in the context of these hearings. Discipline proceedings are penal in nature and the member has little choice about being involved in a discipline proceeding. This is especially true in today's climate when the complaint is one of sexual abuse. The resources of a college far outweigh the resources available to individual practitioners and we therefore think that the prospect of an order for costs is sufficient to propel innocent practitioners to plead guilty.

Finally, we are even more alarmed by the proposition that a more restrictive test for awarding costs should be applied to professionals than to colleges. There's simply no justification for this.

My colleague will now address the issue of mandatory reporting.

Ms Joan MacDonald: Bill 100 requires a report to be filed with the appropriate regulatory college when a regulated health professional or the operator of a facility in which one or more regulated professionals practise has reasonable grounds to believe that a professional has sexually abused a patient. The requirement applies to all forms of sexual abuse, including remarks and other non-physical behaviour of a sexual nature. A report must be filed regardless of the wishes of the patient who was the target of the abuse, although the patient cannot be named without his or her consent.

The Canadian Bar Association -- Ontario believes that mandatory reporting of remarks is offensive in a free and democratic society that cherishes both the freedom to speak and the freedom to be silent. The erosion of that freedom is not balanced by the benefit likely to be obtained from this requirement. Certainly, if the victim of the abusive remark does not wish to make a complaint and does not consent to being named in the report, the report will be of inconsequential use to the college. We believe that the requiring of a report to be made against the wishes of the victim serves to disempower survivors and, in a sense, to re-enact the original abuse. We therefore recommend that the mandatory reporting provisions of Bill 100 be amended not to apply if the victim does not consent to the report.

1550

What this committee may find is that if Dr Jones has a complaint issued against him some 15 years down the road and there are three previous unnamed complaints, then it may be that by due process the unnamed people requiring to remain unnamed are pulled into the current action as of the day of the complaint. I think the committee has to be very concerned about not revictimizing the victim.

As long as the health professional obtains the grounds for believing abuse has occurred in the course of practising the profession, a report must be filed; and no exception is made for regulated health professionals involved in treating other regulated professionals. In fact, where the treatment involves psychotherapy, the report must include an opinion, where possible, as to whether the abuser is likely to continue the abuse. The treating professional must file a further report if the abuser discontinues therapy. The CBAO believes that these requirements are an egregious violation of the privacy rights of professionals who seek treatment and that they are almost certain to deter professionals from seeking treatment.

In addition, this reporting requirement will complicate the obtaining of psychological and psychiatric assessments on health professionals involved in civil or criminal proceedings. The unfairness of the reporting requirement is heightened where the assessment has been court-ordered. There are many competing interests in this legislation.

Finally, the CBAO believes that where an agency is authorized to collect mandatory reports on individuals that contain highly damaging allegations, it is imperative that statutory direction be provided as to the opportunities for the correction of the information and as to the use, retention and destruction of the reports. Provisions of this type appear in the children's and family law reform act in relation to child abuse reports. The CBAO urges that similar provisions be added to Bill 100.

From the feminine legal analysis perspective, we are concerned that when a patient enters a therapeutic relationship with another therapist there should be some consideration to the patient's wishes as to whether that patient requires that the matter be reported. Unfortunately, human beings do not always operate on the time clock of 30 days. It may be detrimental to the patient to report within the time frame desired. There could be a revocation by the therapist in question who is presently treating the patient that would protect both individuals in that relationship.

Ms Bohnen: We'd like to stop there with our final, concluding comment that we support the overall thrust of Bill 100. We think the issues we have raised significantly impede the likely effectiveness and fairness of the bill and that amendments are called for to make the improvements that we've discussed.

The Chair: Thank you very much. Unfortunately, we don't have a lot of time for questions.

Mr Jim Wilson (Simcoe West): A very good presentation; I thank you for it. I wanted to ask Ms Bohnen to clarify a point made on page 4. It's two sentences under the section entitled "Costs." It says: "We are even more alarmed by the proposition that a more restrictive test for awarding costs should be applied to professionals than to colleges. There is simply no justification for this." Could you just elaborate on that point for me?

Ms Bohnen: Sure. By way of background, under the Health Disciplines Act there is no authority for costs to be awarded to either the college or the practitioner who is the subject of a discipline hearing. An amendment to the Health Disciplines Act that appears in the Regulated Health Professions Act, 1991, permits the panel of a discipline committee to award legal costs to the practitioner if the practitioner is acquitted, so to speak, only if the panel finds that the commencement of the proceedings was unwarranted; ie, that it never should have brought disciplinary proceedings against this member.

As amended in the government proposals, the discipline committee would be given the authority to require the practitioner to pay costs to the college if the practitioner is convicted of professional misconduct or incompetence. There is no rider that, for example, the member unduly prolonged the hearings or complicated the hearings or didn't cooperate in some way. The member can only get costs if the proceedings never ought to have been brought against him to begin with, whereas the college can get costs -- and I might add that those costs include the hearing costs and the investigative costs as well as the legal counsel fees -- in any situation where the member is convicted of professional misconduct. We don't see any valid justification for a more restrictive test in giving costs to the member.

Mr Jim Wilson: I guess the problem arises in terms of some of the smaller colleges. If they don't have the ability to evoke this cost recovery scheme, given that the fines go to the province, they may go belly up.

Ms Bohnen: As you've suggested, one possible solution is to permit the fines or a portion of them to go to the colleges. There are existing small colleges or small governing bodies under the statutes that have preceded the RHPA. Even though these colleges are small, they do have more resources than individual practitioners, and when you're pitting the might of a state agency against the might of an individual practitioner, the CBAO believes that the balance has to be tipped in favour of the practitioner. Of course, what the college will have to do is increase all the annual fees payable by its members to pay for its ongoing costs.

The Chair: Mrs Haeck, I'll permit one short, final question.

Ms Christel Haeck (St Catharines-Brock): Hello again, Ms Bohnen, and hello to your colleagues. An interesting presentation, but I want to approach this from the consumer survivor bent for a moment. There was a 60 Minutes television broadcast this week talking about some doctors in emergency medicine. I understand that the situations are different; however, they talked about a particular doctor who in fact had come up against a charge of sexual misconduct with a patient in one jurisdiction and then managed to move around and it took a while to catch this particular individual.

If there had been no record, and likewise, if there seems to be a pattern that is established, what you're suggesting is that even a professional, someone else who was working with that person and happens to see a particular pattern of conduct and the victim of that conduct feeling, for a range of reasons, not quite capable of coming forward -- I would think that it really would behoove a professional who was working with the perpetrator to at least establish that there is a problem. It would be, I would think, important for a college looking at this to be able to establish over the long term that, just because someone all of a sudden had the emotional wherewithal to address this issue some years after this person started this particular behaviour, there is a history to this.

What you're suggesting is that we wait for only so long until that one person has that internal strength to be able to deal with that. My personal feeling is that I realize that, even dealing with it from a labour relations point of view, you do have to establish that there is some sort of cause for an action. I believe this particular clause and the subsections thereto establish cause.

Ms Bohnen: When the alleged abuse occurs in an institutional setting, as it would for emergency room physicians, for example --

Ms Haeck: That's just a very recent example.

Ms Bohnen: Sure -- there are other mandatory reporting requirements in the RHPA that would trigger a report to the college. Where someone loses privileges, their employment is terminated or they are permitted to resign. There is also, of course, voluntary reporting by patients, onlookers and other health care professionals, because the RHPA does not restrict who may make a complaint or file a report on a voluntary basis. But to come down to the crux of the issue, which is what do you do when a health professional has information that a patient has been sexually abused and the patient does not want the report made, that's where we come to the policy crux.

1600

Ms Haeck: I think having their name used is probably more at issue.

Ms Bohnen: I don't believe that's the case. Some of them are quite prepared for the reports to go ahead; they do not wish to be named. Others don't want the report to go ahead whether they are named or not named.

What we're saying, and what my colleagues from the feminist legal analysis section say, is that to permit a report to go ahead where the patient who is the victim of it does not want that report made, in our view and their view, is the wrong policy choice because it revictimizes and disempowers victims of sexual abuse, survivors of sexual abuse.

Ms Haeck: We can discuss this in the hallway.

The Chair: Yes, because of time; I'm sorry. I wanted to allow some questions, because this is I think the only presentation dealing directly with specific legal issues from the Canadian Bar Association, but I'm afraid if we go any further, we're going to be here till midnight. Thank you very much for coming before the committee and for your submission.

Ms Bohnen: You're welcome. If I could just make one plug for the Canadian Bar Association, our sections are available to you if you have any supplementary questions that there isn't time to deal with today. We'd be happy to be contacted by you.

The Chair: Thank you very much.

COLLEGE OF NURSES OF ONTARIO

The Chair: I next call upon the representatives from the College of Nurses of Ontario, if you would be good enough to come forward. Welcome to the committee and please make yourselves comfortable. If you would be good enough to introduce yourselves for Hansard and the committee, then please go ahead. We have a copy of your submission.

Ms Pat Mandy: My name's Pat Mandy. I'm the president of the council of the College of Nurses. On my left is Anne Coghlan, who's the vice-president, and also with us is Elisabeth Scarff, the director of policy analysis and development.

The College of Nurses welcomes this opportunity to submit our comments to you. Many of our concerns and proposals with respect to this bill were identified last week by the Coalition of Colleges and Transitional Councils, of which we are a member. Our submission today focuses on issues of particular concern to the College of Nurses.

The College of Nurses is a statutory body governing 110,000 registered nurses and 35,000 registered nursing assistants in the province of Ontario. The mission of the college is to regulate nursing to protect the public interest.

There are three specific considerations that have steered our response to the bill. They are the eradication of all forms of abuse by health professionals, the need for workable legislation and the requirement for integrity and fairness in the discipline process.

The prevention of abuse of clients by health professionals is a responsibility of all regulatory bodies, but this responsibility is not, and should not appear to be, limited to the prevention of sexual abuse. The College of Nurses believes that abuse of any nature, whether it be physical, emotional, verbal or sexual, must be prevented.

Furthermore, we believe that a number of provisions of the bill are likely to act as a barrier to the achievement of this goal. No legislation can be effective unless it can be implemented and enforced. In other words, it must be workable.

This means that it must be capable of being implemented and enforced in a timely and cost-effective manner; there should be a strong likelihood that the basic elements of the legislation will be sustained in the courts, bearing in mind the intense scrutiny for compliance with charter rights and principles of natural justice to which all disciplinary actions are subject; and there must be significant voluntary compliance with the reporting requirements. This in turn means that the legislation must be easily understood and have credibility with the public and with health professionals.

Finally, the efforts to strengthen the ability of colleges to prevent and punish abuse should not threaten the integrity of the regulatory process. This is likely to occur if the legislation attempts to extend professional regulation to duplicate or replace the criminal or civil justice system by expanding the basic issue from the standards required to practise a profession to matters of retribution and recompense. It will also occur if it imposes functions or activities which limit the actual and/or the appearance of fairness and objectivity in the exercise of quasi-judicial functions.

Bill 100 as it's currently proposed raises some concerns. First, the scope of the legislation: The College of Nurses regulates a large and predominantly female profession. About 97% of RNs and RNAs are female. As such, our commitment to those elements of Bill 100 which we believe will help prevent sexual abuse of clients is unconditional. But the fact that sexual abuse is the sole focus of Bill 100 infers that other forms of abuse are of a lesser importance. This is a view that the College of Nurses strongly disputes. The goal of prevention of all forms of abuse should be clearly articulated in the legislation.

Our second concern relates to the definition of "behaviour or remarks of a sexual nature" and their mandatory reporting. These are two issues that should be considered jointly. The implications of these provisions on the workability of the legislation are significant. There must be a common understanding among regulated health professionals, the public and the courts of what behaviour or remarks are sexual in nature.

The whole realm of behaviour or remarks of a sexual nature is highly value-laden and subjective and is closely tied to cultural and social perspectives. There are more than 200,000 regulated health professionals in Ontario, all from diverse cultural and professional backgrounds. Guidance about the meaning of "sexual nature" is essential.

Bill 100 sets out strict liabilities and penalties both for committing such an act and for not reporting it if the member becomes aware of the act. If a significant portion of health professionals are uncertain about what remarks or behaviour are considered to be of a sexual nature, their predominant concern is likely to centre on their personal liability, rather than on addressing the abuse itself.

The combination of a vague definition and mandatory reporting requirements is likely to result in a barrage of reports which will be administratively cumbersome and will impose unrealistic demands on the time and commitment expected of council members, as well as the funding base of many colleges.

Alternatively, the same combination may produce another group of members who will take the view that if there's uncertainty about what remarks or behaviours are subject to mandatory reporting, the best recourse may be to avoid the issue altogether, leaving the incident unaddressed and undermining the credibility of the legislation.

Furthermore, the legislation seems to ignore the reality that the vast majority of regulated health providers work in an employment setting. It's our view that there is a role for employers in educating and preventing abuse and surely there are many occasions in which the matter can be dealt with more effectively in the employment setting.

The college's ability to deal expeditiously with serious cases of abuse will be compromised by removing any discretion in the member being able to report to an employer. Reporting of all forms of abuse, including behaviour and remarks of a sexual nature, must be promoted.

Failing to provide guidance around the parameters of the definition of "sexual nature" and reporting of behaviour and remarks and making reporting of behaviour and remarks mandatory in all incidents, however, does threaten the enforceability of the legislation.

The third issue that we want to flag relates to the funding of counselling for survivors. The basic premise that it is appropriate to transform regulatory bodies into funding bodies is one that the College of Nurses does not accept. These services should be accessible directly or indirectly as part of universal health care.

We recognize that the government, however, is likely to remain firm in its intent to require colleges to provide funding for therapy and counselling and if so, what we would urge this committee to evaluate carefully is the fact that having the Patient Relations Committee administering the funding program constitutes a fundamental conflict of interest for the colleges. The same party that is determining whether or not misconduct has occurred is responsible for payment in the event of a finding that it has occurred. This is a clear conflict with one of the founding principles of administrative law, that judicial and quasi-judicial functions must be impartial and must appear to be impartial.

The College of Nurses believes that any funding program must be administered at arm's length from the college in order to preserve the integrity of the hearing process. The provision that the program is to be administered by the Patient Relations Committee should be deleted.

1610

The final issue we want to highlight today relates to non-party participation in the disciplinary hearing. The College of Nurses supports codifying the discretion of a discipline panel to allow a person who is not a party to the hearings to appear before the hearing. It serves to emphasize for all parties that this is available. We are aware, however, that you have been or are likely to receive submissions asking for automatic rights of participation. We have grave concerns that such rights will severely compromise the manageability of the disciplinary process.

Regulatory bodies and complainants do not always have the same interests. Preserving the strict standards of fairness becomes even more problematic if there are third or fourth parties pursuing their own interests in the same hearing. It is arguable that granting automatic participation rights to third parties would move a regulatory body from being an arbiter of professional conduct to an arbiter of justice.

For these reasons, the College of Nurses supports maintaining codification of the discretionary right to allow participation as set out in the first reading of Bill 100.

In conclusion, Bill 100 is an important piece of legislation which is supported by the council of the College of Nurses of Ontario. In considering the degree of mandatory requirements to be imposed by the bill, it must be recognized that legislation can only be one element in the effort to eliminate abusive clients by regulated health professionals. The threat of penalties under the bill should represent the last resort, not the first. Our focus should be on prevention and not punishment after the fact, and effective, timely disposition of discipline hearings.

Ms Haeck: Thank you very much for an extensive brief. You've obviously done a lot of work on this particular issue. I, along with a number of my other colleagues sitting in this room, had a chance to listen to some presentations this morning, relating to violence against women, by the Ontario Association of Interval and Transition Houses. They're speaking mainly about spousal abuse of women, and yet again you mention a number of things that they've also brought forward. It relates to cultural differences.

I'm concerned that in your brief you mention that how people respond to these issues may be different. Are you referring to how a doctor may speak to a woman from a different cultural background than ourselves and how that may be taken, or are you referring to a doctor who may have a somewhat different cultural background and how, say, you or I might respond to that?

Ms Mandy: First of all, we're mainly talking about nurses. But we're talking about the fact that there are a lot of clients or patients from various cultural backgrounds who may perceive the intent as different than what was meant in a procedure or discussion.

Ms Haeck: Would you agree, as the women did this morning, that cultural and racial sensitivity programs would be of value in the health care sector, as others are advocating for the judicial system?

Ms Mandy: Yes. In fact, in our strategic plan for the College of Nurses for the next year, one of the major thrusts is cultural sensitivity and awareness.

Mr Jim Wilson: Thank you very much for your presentation. There's a line on page 10 that says, "CNO fundamentally disagrees with the principle that sexual abuse imposes greater rights on complainants than other forms of abuse." I'm going to ask you to comment on that. It leads into the section where I think you are correct, and I spoke at length in the House on this during the closure motion, with respect to the inherent and rather transparent conflict of interest with respect to the Patient Relations Committee administering the funding and the whole process.

Can you just comment briefly on those two issues? What's the solution with respect to, particularly, who should administer this process?

Ms Mandy: I was reading while you were talking to try to find the thing in here. Were you asking --

Mr Jim Wilson: It's a big question with respect to this. I find it rather an astounding statement that on page 10, in the area of sexual abuse -- this legislation, I guess you're saying, implies that the complainants have greater rights with respect to this issue area.

Ms Mandy: Mainly because it's focusing on sexual abuse and we have as many concerns about other forms of abuse, such as physical abuse, verbal or emotional abuse, and feel that they should be included as well as sexual abuse.

Mr Jim Wilson: So fundamentally you think the definition doesn't encompass enough of the abuse that's currently going on out there?

Ms Mandy: It's focusing on sexual.

Mr Jim Wilson: Secondly, what's the solution with who should administer this process if not the Patient Relations Committee?

Ms Elisabeth Scarff: We don't have a precise answer for that at the moment. Obviously, our preference would be that it would be completely at arm's length and would be some sort of government-funded, arm's-length agency. Short of that, I think colleges need to have the discretion to be able to assess what mechanism they can provide for themselves that would be at arm's length. But as long as the provision is that the Patient Relations Committee is going to administer it, it limits even our own ability to canvass what options may be available to allow us to be at arm's length.

Mr Jim Wilson: Just back to the definition, you'd be in favour then of keeping in 3(4), which follows the definition of "sexual abuse" in the consolidated bill and talks about allowing the colleges to make regulations clarifying the definition?

Ms Mandy: Yes.

The Chair: Thank you very much for coming in today and for your presentation.

SPIRICOASIS

The Chair: I call on our next presenter, if I pronounce this correctly, a representative from Spiricoasis.

Mr Alex Perlman: You pronounced it correctly.

The Chair: If you'd be good enough to introduce yourself, then please go ahead with your submission.

Mr Perlman: My name is Alex Perlman. I should initially clarify what might lead to some confusion. Of the two documents that I gave you, one is a letter that I sent to the then Health minister in January of this year and it's sent from Interaction Network. I have several organizations I'm involved with. The second piece has my name on it, so however you want to organize those.

I'd like to start by saying that I'm pleased to be here as part of the practice of democratic process in our province. I understand that there are 15 minutes allocated for this presentation. I'd like to request that, as what I see as being the democratic process, I'll be taking about five minutes to present what's in those two documents you have and I'd be very happy to answer your questions, and I'd like to also have a third element, which is I'd like to hear what your views and reactions are to what I've said so that we can engage in some dialogue within the limited context of the time that we have. I'd like to know if that sounds acceptable to the members here.

The Chair: We have 15 minutes and we'll use it however the questioning goes on.

Mr Perlman: Great. I'll start with the letter I wrote to the Health minister in January, which I think expresses my views quite succinctly, and then the other document provides some recommendations.

"This letter is written to bring to your attention concerns over the proposed amendments to the Regulated Health Professions Act. As you know, the amendments prohibit any form of sexual interaction between a health practitioner and a patient of said practitioner.

"In over 16 years as an educator in the field of human relations, I share your view that sexual abuse is unacceptable, whether it take place in the health professions or elsewhere. Unfortunately, the legislation as it is currently conceived protects the rights of those who are potential victims of sexual abuse by imposing regulations which violate the rights of other citizens.

"The task force on sexual abuse which reported to the Ontario College of Physicians and Surgeons asserted the view that any and all sexual interaction between a physician and a patient is sexual abuse. The proposed legislation also is predicated on this view. The sole argument for this view is the assumption that no patient has the ability to give informed consent to sexual relations with the physician" -- or other health practitioner -- "due to the inherent power imbalance of the relationship. While this dynamic is undoubtedly true in many cases of sexual abuse, great caution must be taken if one is to draw the same conclusion on behalf of all members of the population of potential patients.

"For various reasons, it is true that there are physicians who conduct themselves as authority figures presiding over patients as opposed to conducting themselves as unassuming advisers to patients. Similarly, it is true that there are patients who allow themselves to fit into a complementary role of submission. This dynamic is one which is a result of a number of factors including the tradition of respect for and submission to figures of authority. This tradition is predominantly supported by our current educational and judicial systems.

1620

"Imposition of authority is required where an individual makes choices which violate the rights of others. However, no authority in a democratic system has the right to impose its values on members of our society where the choices of those members are not in violation of others. Specifically, the government of Ontario has no right to impose on our society personal values which hold that a patient and his or her health practitioner must not engage in sexual relations. The proposed legislation protects the rights of potential victims of sexual abuse without concern for the valid rights of other citizens to make their own self-determined choices regarding with whom they are to engage in mutually consenting sexual relations.

"The assumption that no citizen of the province of Ontario is capable of making informed consensual decisions in relation to his or her health practitioner is not only an insult to the intelligence and autonomous capability of each citizen, but its implications as the basis for government policy are dangerous in the extreme.

"I urge you to reconsider and redraft the legislation so that it's effective in protecting the rights of all citizens of Ontario in relation to their health practitioners. Properly drafted legislation will protect those who fall victim to sexual abuse as well as those who would choose with full good conscience and awareness based on their own personal value systems to engage in mutually consensual sexual relations with persons who happen to be their health practitioners."

This other document I have here provides three recommendations following from this letter and I'll read through those.

The first is to provide that any person may sign a waiver which exempts his or her health practitioner from the specific sexual abuse regulations to be implemented by the bill and to rely solely on the laws which govern sexual assault by any member of Canadian society. Such a waiver is to be effective only in regard to health practitioners for which the person signing the waiver becomes a patient after the date of signing. A person couldn't sign this waiver after having gotten to know the physician.

The second is to provide that all patients, whether having signed a waiver or not, have the opportunity to engage in a relationship with a health practitioner after undertaking appropriate educational and counselling prerequisites offered by a qualified third party to ensure that it isn't a situation of sexual abuse or potential sexual abuse.

The third recommendation is to provide that all patients and health practitioners have the right to engage in social interaction provided that such interaction involves no sexual content or interaction of a sexual nature. I understand that the current wording would prohibit any kind of social interaction, even going out to dinner, between a patient and a doctor.

That's what I want to present. I'd like to address your questions and find out what your reactions are to the points I've made here.

Mr Stephen Owens (Scarborough Centre): Let me tell you, my first reaction is that your presentation is certainly a lot different from anything else I've heard on this issue during these hearings or at any other point when this issue has arisen.

I guess I should preface my question to you with a comment that I don't believe a physician's office, a psychotherapist's office or a dental practitioner's office should serve as a dating service for either the practitioner or the patient. I think that the position of trust the practitioner is in renders the opinion of yourself and others who may be involved with this particular opinion to be a little bit absurd. Any kind of activity such as you suggest is completely inappropriate and antithetical to any kind of oath that practitioners would take with respect to the service they are to render to their patients. I don't understand --

Mr Perlman: I'd like to respond to your comment, if I may. I know you said you were going to ask a question, but you started with a reaction, which I appreciate, and I'd like to respond to that, if I may.

Mr Owens: It's your 15 minutes. Go ahead.

Mr Perlman: Thank you. I see this as our 15 minutes, by the way. I see us all as serving all of the citizens of Ontario and I think it's important to recognize that.

I feel personally affronted when you say my opinions are absurd and I want to also say that I appreciate your honesty. You've said you don't believe that a physician's office or other health practitioner's office should serve as a dating service. I agree, an office is not set up for that purpose, but I'd like to bring it to a very personal situation. If I go into a doctor's office -- say, my family practitioner refers me to another doctor -- and I meet this person, it happens to be a woman, she attends to whatever my needs are and there is a dynamic there where this is the person I've been looking for all my life and there's a connection and real value to pursuing a relationship with this person, what you're telling me is that there is no right for us to pursue that relationship.

I'm fighting for that right as a citizen of Ontario and as a person who's responsible for my own choices. I don't see that as being absurd. I see that as being an inherent right that I have as a citizen of this province and I don't believe the government has the right to restrict that type of relationship.

You were going to ask me a question and I did want to respond.

Mr Owens: I don't understand, first of all, where you would draw the line. I guess that's the first question: Where do you draw the line? How do you determine other than some kind of a waiver that's signed? I'm just wondering if you've ever heard of the word "coercion," if you are aware of the power relationships between men and women. You talk about yourself as a male wanting to have a relationship with your female physician, but in my experience, again, with this particular issue, there's usually a power relationship that takes place between a physician and his female patient. This is where the problem lies.

Mr Perlman: I'd like to answer your question. I absolutely recognize that this is the situation that is being addressed here and that's why the Task Force on Sexual Abuse of Patients said that any relationship between a physician and a patient is sexual abuse. They're saying that the patient can't consent because there is this power dynamic. What I'm saying to you is that yes, there are many people who are, if I may say, immature in that they see the doctor or other health practitioner as being a great power and they would be subject -- I see you shaking your head.

Mr Owens: That's right.

Mr Perlman: Please just try and understand what I'm trying to say.

Mr Owens: I understand clearly what you're saying.

Mr Perlman: Okay, tell me what I'm saying.

Mr Owens: I just disagree with it fundamentally --

Mr Perlman: What is it that you disagree with? What am I saying?

Mr Owens: -- in terms of your assertion that one can make a "mature" choice with respect to this type of a situation. I just don't think that your suggestion is reasonable.

Mr Perlman: You're saying to me that no person in our province is capable of making that decision?

Mr Owens: That's not what I'm saying at all.

Mr Perlman: I'm trying to protect the people who are capable of that.

Mr Owens: And I'm trying to protect the people who have been seriously disadvantaged and hurt by the lack of understanding.

Mr Perlman: Absolutely. That's what this legislation is for. I'm saying draft legislation which protects those people without violating the rights of those people who are capable of making that decision.

Mr Owens: Then you must be a much wiser person than I, because I certainly can't begin to devise, or even want to think about setting up, a system that would determine who was capable or not capable of making a decision with respect to relationships with their practitioners.

Mr Perlman: I've provided a proposal here which provides for those individuals prior to meeting a practitioner, where they can sign such a waiver. I think the biggest problem with sexual abuse in the health professions involves the hidden relationship. If it's out in the open, the second provision provides that where people are interested in a relationship, they go to a third party who would have the responsibility to determine.

If you can think of a better way, fine, but what you're saying to me is there's no way to do it, therefore my rights as an individual must be violated. Barring totally disregarding the licence of the health practitioner, I'll have no right to engage in such a relationship. I'm not saying to you that I will choose to do so. What I'm saying to you is that, as a premise, it's very dangerous. What we're doing is bringing the legislation down to the lowest common denominator. In other words, the most helpless person will be protected by this legislation and those people who are self-responsible and can make informed decisions on their own will not have the right to do so.

I've been engaging with one member here. I wonder if others have varying opinions.

The Chair: Have you finished your questioning?

Mr Owens: Absolutely.

Mr Perlman: We've got a minute and a half left.

The Chair: That was the only question that was on the docket. Thank you very much for coming before the committee.

Mr Perlman: So I don't get my -- okay.

The Chair: There are no further questions. Thank you very much for coming before the committee.

Mr Perlman: I just requested other reactions, but if you're saying my time is up, then I accept that.

The Chair: No, I'm just saying that there are no further questions. Thank you very much for coming before the committee.

Mr Perlman: I would like to state before this committee --

The Chair: Order, please.

1630

ONTARIO MEDICAL ASSOCIATION, SECTION ON PSYCHIATRY

The Chair: I would then call on the representatives from the section on psychiatry from the Ontario Medical Association. Please come forward. Would you please introduce yourselves. We have a copy of your submission. Please go ahead.

Dr Patrick Conlon: Good afternoon, members of the committee. My name is Dr Patrick Conlon. I'm a psychiatrist from Goderich, Ontario. I am chairman of the Ontario Medical Association section on psychiatry. With me is Dr Judith Hamilton, a psychiatrist from Toronto with a special interest in the practice of psychoanalysis and also a member of our section executive and chairman of our section's response to Bill 100.

We are here today to give our support to the efforts to date in addressing the problem of sexual abuse of patients by health care professionals. Already, by acknowledging and recognizing the problem, the education of our colleagues and the public has commenced. Already, increased awareness has led to a marked increase in the reporting of sexual abuse.

Health professionals guilty of abuse are now more likely to be identified and disciplined. Most importantly, patients who have been victims of abuse are heard and hopefully now will be dealt with in a more compassionate way. This evolving process serves us all well. Public and professional awareness, however difficult the debate, must be the cornerstone of any effective strategy dealing with the problem.

Psychiatrists, like other health professional groups, have had some time since the original task force recommendations to reflect, analyse and debate the proposals. This dialogue has been healthy for our profession. We are all now in a position to carefully consider provisions to not only protect but also preserve the integrity of patients.

Therefore, it is incumbent upon legislatures and legislators to recognize the complexity of this issue and propose workable solutions taking into consideration the needs of all patients. It will not be good enough to propose regulations solely because they are simple to understand or apparently easy to administrate, and certainly it will be completely unacceptable to propose legislation that harms some patients even if the greater good seems to be served, particularly when this in fact need not be the case.

Psychiatrists have great concern for the wellbeing of their patients. It is a responsibility we do not take lightly. Therefore, we have tried to approach this issue in a constructive manner. We feel that with some modification the current proposals, particularly those related to mandatory reporting, can benefit all patients.

I therefore urge you to listen carefully to the presentation of my colleague Dr Hamilton, who will articulate our concerns. I thank you for your attention.

Dr Judith Hamilton: I am very pleased to be able to make this presentation to you today.

Psychiatrists are very familiar with the feelings, thoughts and behaviours of patients who have suffered many forms of abuse, including sexual abuse. Indeed, psychiatrists as a profession have led the way in discovering and documenting the effects of sexual abuse on patients.

There is much in Bill 100, both in content and tone, with which we strongly agree. We would like to confine our comments today to the proposal for mandatory reporting.

Mandatory reporting is especially important to us because, among physicians, we psychiatrists are the most likely to hear from patients of episodes of sexual contact they have experienced with a physician or any other health care professional. For our work with patients to be effective, we encourage, even require, them to tell us, sometimes over long periods of time, everything they can about themselves as openly and truthfully as possible. In this sense, we induce them to disclose confidential information. A law that would then compel us to take advantage of their illness and trust and to break confidentiality would be extraordinary.

The issue of mandatory reporting is also important to us because psychiatrists are consulted by other physicians or health care professionals who may have concerns about their own professional behaviour or who have a psychiatric illness that may have included an episode of sexual contact with a patient.

An important part of the training and professionalism of a psychiatrist is the proper exercise of judgement in the clinical situation. We rightly are held accountable for these decisions, which must be made with the overall clinical picture in mind, guided by the duty to preserve and protect the patient. Accountability would also apply to any decision a psychiatrist would make with respect to mandatory reporting, either to report or not to report.

Sexual abuse: The section on psychiatry, the Ontario Psychiatric Association and the Toronto Psychoanalytic Society completely agree with the prohibition against sexual contact between a psychiatrist and his or her patient during psychiatric treatments of all kinds. It is always unethical and constitutes professional misconduct. This position is consistent with the position of the Canadian Psychiatric Association.

Beneficial and manageable effects of mandatory reporting: We support mandatory reporting of sexual abuse for the categories identified as transgression and violation. For the category of sexual impropriety, we agree with the Ontario Medical Association and the coalition of professional associations that this is much better dealt with by the professional intervention and education model implied by the duty to intervene.

For most psychiatric patients, mandatory reporting will have beneficial or at least manageable effects. For example, when patients present to psychiatrists because of psychiatric symptoms arising from experiences of sexual abuse from a health care professional, there is usually no problem with the psychiatrist's reporting the episode to the appropriate college.

For the patient for whom psychotherapy is indicated, there can be a problem of timing and about who will report. For this kind of patient, the psychiatrist's obligation with respect to the goals of treatment is to work with the patient to enable the patient to report the episode.

However, for these patients who present with symptoms arising from sexual abuse, the central issue is clear, and its clarification and the discussion of actions to be taken and by whom forms a natural part of the consultation. These patients may be relieved that the psychiatrist is obliged by mandatory reporting to report the episode and reassured by the anonymity offered.

When patients describe, during the course of an extended psychotherapeutic or psychoanalytic treatment, a recalled episode of sexual contact with a health care professional, complicating considerations arise. For example, the episode may have occurred any time from the recent past to the distant past and it may consist in the patient's recollection of any variant of behaviour, from a nuance of sexuality to an overt sexual act. Pursuing the details of the experience to satisfy the mandatory reporting requirement, imposing a certain view of the experience on the patient, and reporting to an unknown person outside the treatment all represent significant alterations in the therapeutic process and contract.

This being said, for many patients in psychotherapy and psychoanalysis, the discussion about an experience of sexual contact and the reporting by either the psychiatrist or the patient can probably take place without too great a disruption of the treatment. Because of the importance of the development of trust for a successful psychotherapy, it would be unacceptable for a psychiatrist to report the experience without first telling the patient.

1640

Harmful effects of mandatory reporting: There are several groups of psychiatric patients for whom mandatory reporting will be harmful. Therefore, the needs of some of these patients require flexibility in the form of exemptions in the requirement for mandatory reporting.

There will be patients who will be very alarmed and frightened by the prospect of reporting to a regulatory college an experience of sexual contact, even if the psychiatrist reports and even if they are assured of anonymity. Some of these patients will not want such an episode reported, at least at the time when they first raise it. Even faced with mandatory reporting, some of these patients will refuse a psychiatrist permission to report.

If the issue is forced by a legal requirement that the psychiatrist report, these patients may experience this as a traumatizing invasion into their already injured lives of society's demands, a victimization by the very agencies that are trying to protect them. They may feel frightened by the threat of exposure. They may even feel they have been tricked by the psychiatrist into revealing the episode. Already vulnerable, abused patients will feel revictimized by yet another professional: the one who reports their experience to the college against their will.

Therapists in other settings -- for example, feminist therapists treating victims of rape and other forms of sexual abuse -- are adamant that in their work they would never force a client to report her experience to the authorities, nor would they report it against her will. They know, as we do, that such forced reporting would destroy the client's trust in the therapist, it would not be serving the client's needs at the time, it would be disempowering in the extreme and it would be completely anti-therapeutic.

The offer of anonymity to these patients will not reassure them. Many are psychiatric patients for the very reason that they have been used since childhood to satisfy the needs of other people, usually parents or other people in authority. They know that they are traceable through the name of the reporting psychiatrist. They know that this report may come back to them through the psychiatrist as information from the college that another report has been received, and as an implied or overt request: Would they now be willing to participate in a complaints process? In spite of the fact that they have declared that they do not want this, they will feel pressured by the college and society at large to get involved in the complaints process.

Then the next months and years of their therapy and lives will be inexorably caught up in this process, either in their minds, if they still refuse to participate, or in reality, if they agree. Their personal developmental needs will be lost from the therapy. Their therapy will be lengthened, and the costs increased. They may well need medication to get through this, and their suffering will be greatly increased. With such a breach of trust in the relationship with the treating psychiatrist, these patients may break off the treatment altogether.

Other patients may feel extremely offended by the threat to their privacy that mandatory reporting poses. These patients, who consider themselves to be personally strong and in control of their own lives, may become enraged at the psychiatrist who insists on their reporting, or reporting for them, what they consider to be their own experience. Feeling cornered and infantilized, these patients may also break off the treatment.

Finally, there is another group of patients who require some flexibility in mandatory reporting; that is, potential patients who know about the requirement for reporting and do not want an episode reported. These patients either will not come to a psychiatrist for treatment of any psychiatric problem or will try to withhold information about such an experience from psychotherapy treatment. For example, they might plan to withhold a name.

The illness and suffering that would result from potential patients not coming at all is painful even to think about, and as anyone in ordinary life who is trying to hold on to a highly emotional secret knows, the secret gradually consumes the whole of one's consciousness. Not only would such a patient's psychotherapy become increasingly blocked and ineffective, but the effects of the experience itself would not be discovered and mastered, including the patient's developing the strength to report.

Patients not coming for consultation and treatment is an alarming concern when the potential patient is a health care professional either who is concerned about the appropriateness of his or her own professional behaviour or whose history includes an episode of sexual contact with a patient at any time in the near or distant past. Such a person will not likely consult with a psychiatrist if they expect to be automatically reported. What was an improprietous remark or gesture, or even only a fantasy of increased involvement with a client or patient, may, if left undiscussed, go on to become a serious boundary or sexual violation. If a health care professional for whom sexual contact with a patient or client was either the regretted consequence of psychiatric illness or an unacknowledged transgression of professional conduct goes untreated or uninfluenced, he or she could pose a significant risk to other patients.

Psychiatrists are not willing to act as shields or hideaways for abusing professionals, so an exemption allowing non-reporting would always rest on a clinical judgement taking into consideration the risk to other patients. Any decision with respect to reporting would be subject to standards of professional accountability. Non-reporting by the treating psychiatrist would not stand in the way of a patient-initiated complaint about the professional. Non-reporting would not stand in the way of a full investigation of any complaint brought forward by another individual. In the event that the professional does present for discipline, the college should judge the case on its merits, not on whether or not the professional is in treatment.

Proposed amendment: Therefore, because there are several groups of patients to whom absolute mandatory reporting will cause harm or prevent their getting the treatment they need, the section on psychiatry urges the government to adopt the following amendment to Bill 100:

"Psychiatrists are allowed a limited exemption from the mandatory reporting requirement in the following circumstances:

"(a) when a patient in psychiatric treatment refuses to give permission for reporting; and

"(b) when the psychiatrist considers that more harm than good will come from the report."

Mrs Yvonne O'Neill (Ottawa-Rideau): This is a very important brief because of the key role you're going to play and do play at the present time in the treatment of the situations we're trying to eradicate or at least bring into a more positive vein.

You said one thing that struck me, and I would like you to say a little bit more about it because I think those of us who are not part of your profession don't fully appreciate this. You said that it would be very detrimental to the treatment you provide to impose a view. I wonder if you could say a little bit more about that, because I think the whole of Bill 100, as you would have to apply it, would revolve around imposing a view: a view that this had to go forward in the manner in which the bill states it must. So I'd like you to say a little bit more, if you want to use an example, of how that would -- because you have stated throughout the brief, and I tend to agree, that this bill could be harmful in your practice.

1650

Dr Hamilton: Certainly for many patients, if they come with symptoms arising from an actual experience of abuse, they come in a state of distress and it's very clear to us how they experienced the whole situation, and they are prepared at that point to get interested in the process of reporting. When you think about the patient who's in a prolonged psychotherapy experience, when such an example comes to their mind, they may not experience it with distress. As I said, there may have been something incidental to them that happened in the past. There may have been a vague experience. It may be a barely remembered experience. They may not initially think of it as something bad that happened to them.

For the psychiatrist to suddenly interrupt the treatment and practically sit the patient upright and say, "Now, this may involve an experience of sexual abuse and I want us to stop the therapy at this point and investigate this, because, you know, if we agree that it was sexual abuse, we have to report to a college," this becomes a whole change or alteration in the course of this patient's therapy.

That's not to say that this experience would not be brought up at a later time or in another context or explored further even, at the time, but once the psychiatrist gets telling the patient what their experience was, it changes the whole nature of the treatment and it no longer belongs to the patient but becomes society working through the psychiatrist to tell the patient what they've been through.

To us, this is breaching one of the very tenets of psychotherapy and psychoanalysis, that it's the patient's life and their experiences that we're trying to help them evolve and work through, not imposing our own views on them.

The Chair: Can I just note for everyone that there's going to be a bell at some point in the next five minutes, so in order to allow our next witness the full 15 minutes, we'll just complete questioning and then break and we'll come back with Ms Stasha Novak once we have voted, which should be somewhere between 5:05 and 5:10.

Mr Jim Wilson: I think you've given us a very thoughtful presentation. As usual, as legislators we're kind of used to being in a quandary, and we're in a quandary with respect to mandatory reporting.

I'm interested in the second part of your suggested amendment, which would introduce sort of a harm test. Given what you were just talking about with respect to the interruption of therapy to actually have to discuss this process, where would the harm test come in? I'd assume you would hear out the patient. If we don't make adjustments to other parts of the act, though, the moment you hear about sexual abuse is when the reporting process is supposed to begin. I wanted to just ask you when that test would apply.

Secondly, I think some survivors or other very concerned people might get suspicious that for psychiatrists, because they're part of the medical profession, this might be a clause to enable them to get away from the whole issue of having to report colleagues or other health care practitioners. I want you to address that, because I'm sure it will come up in the rest of the hearings.

Dr Conlon: I think you're absolutely right in the sense of the harm. It really is a clinical decision that's made in therapy when you in fact would deem that to go through the reporting mechanism at that point in time would cause more harm to the actual patient who is in treatment than potential benefit. That doesn't at any stage preclude a reporting later on if it was felt that, if you like, the balance changed somewhat through the course of therapy. In fact, that would be what we would hope, that throughout therapy there would come a better time when the patient may be able to deal with the reporting of the incident. It's certainly one of the goals of therapy to arrive at that point; in other words, to empower the patient with the ability to do that.

The second part, and I think it's a very important point, is that in no way do we want to obviate the profession or psychiatrists from the responsibility this decision brings about. In other words, you would be held professionally accountable at all times for that decision. If you made a decision of non-reporting, let's say, at that point in time but subsequently it came to light that abuse occurred and there was an investigation, you would have to justify, as a professional, why you didn't report. You would clearly have to have documented evidence within the clinical notes, as we do for many kinds of decisions, and would be held professionally accountable by your peers for that decision. I think if you made an inappropriate decision, for whatever sorts of reasons, you would be held accountable and would be subject to discipline.

Dr Hamilton: We think that should even be included in the bill perhaps, like an extra accountability clause related to mandatory reporting.

Mrs Karen Haslam (Perth): On page 3 you mentioned something about, "Patients may be relieved that the psychiatrist is obliged by mandatory reporting to report the episode and reassured by the anonymity offered." I wanted you to expand a little bit about that because I'd rather err on the side of the victim in this legislation. I'd rather this legislation looked at that aspect. In the last few days we've heard from a lot of professionals and I just have a feeling that the victims are sometimes being lost in all of this discussion. Would you just expand a little bit about how they'd feel "relieved that the psychiatrist is obliged by mandatory reporting to report"?

Dr Hamilton: Some victims in this situation feel, I suppose as everybody does, that relating to a regulatory college is an anxiety-provoking experience. Some are very frightened about what might happen to them as a result of that, so they feel anxiety, they feel guilt about coming forward, they feel fear. They see other victims on television -- I guess we've all just seen that recently -- what happens to victims who come forward in complaints processes. So many people would rather not get caught up in that whole experience.

The idea to some of these people that someone else will do the reporting for them and that there is the promise of anonymity can make them feel easier about reporting, can give them the idea that they may not get caught up in the process if they don't want to. That is enough to help some report at that point in time, or allow for reporting.

What we're concerned about is those people who are in a way more ill than that, who will be more frightened than that, who may develop even a paranoid response to the idea of information from their therapy going forward to a regulatory college.

Mrs Haslam: Can I switch very quickly and very briefly? There's a recess for five minutes.

The Chair: It's a recess? Okay, if we just finish this one question.

Mrs Haslam: We should be okay. I'd like to switch now to your last page where you say "when a patient in psychiatric treatment refuses to give permission for reporting." What about the doctors or an abuser who comes in? I think Mr Wilson has mentioned that, that we don't want to see this as a way to get out of punishment at the college by saying, "Okay, fine, I'll go and see a psychiatrist," because I think our fear is that then will have an effect on whether that's reported or not, and we feel it's important that it is reported. I'm concerned -- maybe it's just the comment -- that when you have a patient in who is an abuser and doesn't give permission, then it's never reported.

Dr Hamilton: The point we'd like to keep making is that we're not saying that we would not report because a person refuses. That's why we've inserted the idea of more harm than good. We're trying to use a general idea of harm too. We would like to work on the understanding that we would accept mandatory reporting but that there would be the occasion when we would feel that it would be more harm than good to report. If an abuser presented to us for treatment, we would ordinarily feel that we would like to report. We know that we can always report. Also, if a person presents for treatment, it's always possible for someone else to report them. We would never stand in the way of that.

The Chair: We are going to have to stop there. It's a little confusing as to whether we're going to have to go up shortly to a vote, but I think I will just have to at this point say thank you very much for your submission and for the answers to the questions.

1700

STASHA NOVAK

The Chair: I will then call Ms Stasha Novak to come forward. Is Ms Novak here? I hope we'll not have any problem with our time, but if we do, we will ensure, after we have returned, that you have the full time that is allocated to you. Welcome to the committee. Just so we can hear you, could you just speak into the mike. Please go ahead.

Ms Stasha Novak: My name is Stasha Novak. I cannot speak very well because the dentist who assaulted me also didn't do the dentistry very well. It's not a laughing matter, but it's okay.

I don't know everything that is in Bill 100, but sometimes when we are in a professional's office we don't know exactly what is professional misconduct and what is sexual misconduct, but when it happens in an office most likely the professional services are compromised as well. In my case, they certainly were.

I wrote something, so I have to rely on that as well. I will start with that.

Seven years ago, I was gainfully employed, my credit rating was A, I was a part-time student at the University of Toronto, I had an apartment, I had good health and I had my teeth. The teeth are very, very private. We talk about any subject today except -- I don't know.

In a short time I lost everything. I wasn't involved with dealings of organized crime. I was the recipient of professional services by an incompetent dentist, a lawyer, a psychiatrist, a doctor, whose code of ethics and professional standards are monitored by their respective self-governing bodies.

All I wanted in 1980 was to have my teeth done, and I wanted to continue with my life as normally as I possibly could. Instead, my dental case and my health have been suspended in limbo by the Royal College of Dental Surgeons of Ontario and my two former dentists. Since 1988, I've been held hostage to conditions created by the dentistry. My bank account has been depleted by over 100 dental appointments. In the process, I lost all dignity. The dentist, who was not qualified, did dental work on me. He sexually harassed me, he assaulted me, he refused to forward my dental X-rays and material used in my work to another practitioner for reconstructive dentistry and he misquoted dental fees to me. He said he has good lawyers and they're going to get me.

At the first hearing when I went for dental misconduct, I felt intimidated and I didn't tell the committee. Subsequently, the lawyer sent me to a psychiatrist to make an impact statement on how the dentistry affected me. I was so relieved, because I was able to unload what I was carrying so heavily. Unfortunately, the psychiatrist forgot to put it in his report. In fact, I believe the psychiatrist's letter was ordered to be written in such a manner that I could be discredited any time when it would be convenient.

I don't know how comfortable you are as a man, as a woman, because it's not a women's issue; I believe it's a human issue. I would like to know, how would you like to see your wife, your daughter, your husband, your grandmother or anybody go to a dentist and have psychosexual development mentioned in his or her psychiatric report?

The psychiatrist was supposed to write a report how the dentistry affected me mentally. Instead, I will read you a few comments. This psychiatric assessment was also sent to the Law Society of Upper Canada when I filed a complaint regarding my lawyer. In spite of overwhelming medical and dental evidence, only the psychiatrist's statement has been sent to liability insurance. Since everybody knows everything about me, I might as well tell you as well:

"She had at least one long-term relationship with a man which ended five years ago. It was very difficult for me to obtain detailed information on her psychosexual development and other peer relationships. However, I was left with the impression of a rather constrained, precise, perhaps somehow obsessional woman who devoted herself to work and had few other activities to occupy her." I don't agree with this statement and my friends don't recognize me either.

"She attended school until grade 12. Unfortunately, in 1956 her father died and she left school and she started work, as noted above.

"She immigrated to Canada alone and hopeful for a new future. She proved to be resourceful working as a domestic." I escaped one communist country. I didn't go to the passport office. Yes, I did work as a domestic, 12 hours after I arrived in Canada. I'm very proud of it.

"She worked for approximately 19 years. It is of note that she worked steadily but was never promoted." There is no mention of assault by the dentist.

Another statement I would like to add is, "She was directly involved in witnessing violent and brutal murder...by the Nazis and was terrorized by seeing members of her family taken to the concentration camps. Her father was taken at gunpoint," etc. This psychiatrist feels right to retraumatize my family and my childhood trauma, as if reporting war trauma would give him credibility for the accuracy of the rest of his report.

The psychiatrist used questionable Freudian theory, analysing my childhood years instead of looking at my face today, disfigured because of this dental work. My facial bones are sinking. My loss of bone is pronounced and it's worsening by time. My face will be disfigured until I die. I lost six years of my life. I live in perpetual hell and I'm not out yet. My facial pain and strain and infection in my mouth of several years in duration, affecting my entire body and my immune system, doesn't call for digging into my childhood events some 50 years ago on another continent. Psychiatrist, don't trivialize my pain.

He assaulted me the moment I walked through the door because I brought to him an estimate and I asked him if he could do the dentistry. He wasn't qualified. In one moment, it was professional misconduct and sexual misconduct. When he grabbed me and he assaulted me, I didn't go back any more. I didn't know how to deal with it. I had never been in this situation. I don't walk around provocatively, and even if I would, his wife was his dental assistant.

Who am I supposed to talk to? I live by myself. It's not that seven million people don't live in Toronto; it's just I didn't know how to deal with it.

Finally, I filed a complaint with the college of dental surgeons. I believe they had already my psychiatric assessment, because the liability insurance is in the same building and perhaps there is a file; I don't know. So I walk in and it was a total charade. I got a lawyer who was very, very conscientious. I can name him; I don't know if you'll allow me to. He believed me, my friends believed me, everybody believed me, and it was just a charade. I signed the statement and I sent it in the mail. He denied by mail and said I am a liar and have a psychological problem.

1710

Finally, I went to the justice of the peace with several letters. It is too late to go to the court to be charged, but the two justices of the peace believed me. In fact, they suspected that he has done it to somebody else as well.

I'm sorry for my clumsy presentation. Obviously, it's very difficult for me. I hope you understand this.

The Chair: Thank you very much for your submission and also for the various documents which you have attached to it. We appreciate that it's not an easy submission to make, but thank you very much for coming before the committee today.

MED-AWARE PUBLICATIONS, PATIENT ADVOCACY ISSUES

The Chair: I then call upon Ms Elizabeth Rankin. Miss Rankin, we may have to suddenly leave you, but I assure you we will provide all of the time, and until the bells go we're in your hands, so please go ahead.

Ms Elizabeth Rankin: You've introduced me as Elizabeth Rankin. I am here as a survivor of medical abuse and an advocate in terms of trying to do patient advocacy work on various health care issues.

The Chair: Sorry. Just to interrupt for a moment, we do have a copy of your submission.

Ms Rankin: I really wanted to deal with some of the provisions that I see are issues that have not yet been covered sufficiently. When I hear some of the presenters and I see and hear some of your questions, I see that there's got to be a little more refinement in the amendments to Bill 100 in order to seek further clarification. I'm hoping that my submission in greater detail will offer some use to you in that regard.

In regard to the provisions where "appropriate standards of practice are developed and maintained," that "individuals have access to services provided by the health professions of their choice" and that "they are treated with sensitivity and respect in their dealings with health professionals," I would like to assist you in making the provisions more workable. I will highlight some of the points for this presentation:

(1) There is a need for a broader definition of what constitutes sexual abuse that refers to and considers the lack of research on women's health problems, which I believe is the basis for exploitation of women within the currently defined medical standards of practice. Primarily, my brief that is submitted to you and the presentation that I will be making concern medical practice as opposed to the other regulated health professionals.

(2) Male gender is the variable for control of women's bodies, which spawns and nurtures abuse in health care.

(3) There must be recognition for utilizing survivors of abuse as the critical proponents in the movement needed to change the standards for both medical and health care practice, and I differentiate those because they really are two.

(4) I think it's very important that we consider moving the hearing process from the colleges to an independent panel using a civil procedure.

The problems within the current provisions and the current amendments in regard to the "appropriate standards of practice": I feel we need to have a coalition established to develop a model for health care practice which would be comprised of an equal number of survivors and professionals to review, define, implement, monitor and evaluate which current standards of practice are, can be or should be considered outmoded, unsafe; are said to be demeaning, seductive or exploitative; are or could be said to be a physical, sexual or emotional assault to patients. The coalition would assist the RHPs to reform their standards for practice and provide remedies where it was felt sexual abuse and its variant, sexual exploitation, are actually abusive or could be perceived to be abusive.

Survivors have a critical role in helping all professionals learn more about how abusive professionals wield their power and engage patients in abusive forms of practice. Therefore, they must be involved with the development of any standards for practice. Standards that are unacceptable but have been tolerated by the public and are presently considered acceptable standards of practice by members must be now re-evaluated.

Why change standard practice? There are numerous questionable medical standard practices that are known to be unsafe or unscientific, demeaning, sexual, emotionally threatening, unnecessary or exploitative, and these include but are not defined as or limited to genital mutilation. The medical community does not describe the activity or practice of routine episiotomy, which is only one area that I will describe, as a form of genital mutilation, but it is arguably nothing short of such a trauma. Episiotomy is a surgical procedure that cuts into the perineum and vagina of the woman as she is giving birth vaginally and often creates sexual and bladder dysfunction, not to mention the unnecessary pain that is inflicted on patients. The practice is rarely used in other countries or where the mother is attended to by midwives, but it has become standard practice in cases of obstetrics in North America.

The committee must understand that standard practice has encouraged sexual abuse. This legislation must demand the review of many such medical standard practices for women so they are no longer routinely allowed to continue just because this is the way the doctor has learned to practise.

Sexual abuse is a concept that is broad, and this legislation must be sufficiently broad in its scope to assist those who are charged with the responsibility of making change as well as those who represent the public.

I have concerns about the MOH proposing to delete subsections 1(4) and 85.1(2) regarding "Subject to the approval of the Lieutenant Governor in Council and with prior review by the minister, the council may make regulations clarifying or extending what constitutes sexual abuse of a patient by a member." Unless this subsection is left in, I believe there is little room for regulations to be clarified and extended in what constitutes sexual abuse of a patient by a member, unless I have misread or misunderstood that particular amendment.

It would be a good idea to have a reference made to such type of practice in the legislation that includes procedures that could be considered sexually abusive. A point of reference will allow patients, advocates and member professionals to be observant of how a certain practice is or might be harmful to patients and how incompetence or liability could be contested.

There is a lack of research for women. There is as little as 3% of total research dollars spent on women's health problems in Canada. The drugs prescribed for women are based on the 70-kilogram man; they are not researched as to their effectiveness for women. This is exploitive and unsafe practice. Women are essentially the guinea pigs when they are subjected to the drugs said to be tested as safe for men. For example, estrogens are promoted for women to reduce the chance of heart disease. We do not know for certain that the estrogens that are promoted for women do in fact reduce the risk of heart disease, because there hasn't been sufficient research. Perhaps there needs to be a health risk warning on the package of drugs for women so that the risk labels draw recognition to the fact that the medical community does not always know with any degree of certainty that the drug is safe. It is this type of controversy that must be settled to reduce the incidence of problems which have resulted from cases like the Dalkon shield, Meme breast implants, DES, thalidomide, and the list goes on.

I believe we need strict research guidelines that will prevent sexual exploitation of women in the area of drug use and surgical interventions. This government, through Bill 100, can reduce this discrimination and exploitative practice and offer all women an opportunity to be better cared for by insisting that a proposed coalition be established which confronts the issues facing women in health care. Women are entitled to have women define for women which areas of research deserve attention.

Sexual abuse by professionals involves far more than sexual touching, remarks and intercourse; it involves the entire arena of exploitation that is only briefly alluded to in this submission.

For instance, we do not research problems that plague women and might be considered being sexually induced problems. Problems that are sexually induced and subconsciously repressed need attention. We need to have studies that look at women who have been sexually assaulted and see the relationship to uncovering that incest or other sexual deviant assaults to the psyche have resulted in such diagnosis as endometriosis, infertility, fibrocystic breast disease.

The amount of money that has been spent to try and medically or surgically correct these conditions to no avail could have been better spent if research had been done to uncover how closely the abuse that affects women controls their hormonal response. Often pain is the physical symptom in a sexual organ to signal to them that the abuse has happened. Patients are often unaware this is the case until they get counselling or are beginning to talk about their suppressed emotions.

There is not the value attached to this kind of research. It's not exciting enough for pharmaceutical companies and so this kind of evidence is not getting to doctors and women are not getting proper treatment.

I believe this is a form of exploitative practice, because women instead are given the old, unhelpful standard practice of prescribed mood elevators or they are given treatments which focus on the organ, usually a drug to suppress some hormonal response --

The Chair: Ms Rankin, I apologize. The bell is ringing and we have to go to the House for a vote. We will be back shortly, probably in about 10 minutes, so I would adjourn the committee now and we will try to begin again in about 15 minutes.

The committee recessed from 1722 to 1803.

The Chair: We begin our afternoon, now evening, session and Ms Rankin, again I apologize that we had to cut you off, but I think there was some five minutes left in your time, so if you would please continue, just so you understand, in the record of the committee it will simply show there was a brief recess, but your testimony will follow right along, so anyone looking at it will see it in its entirety as one presentation.

Ms Rankin: Thank you very much. I'd like to begin where I left off, which was talking about sexually induced problems and the need for research. I think I left off saying there is not the value attached to this kind of research for women, because it's not very exciting for pharmaceutical companies, and they largely are the bodies organizations have depended on, on receiving their funding, so women are not getting proper treatment.

I believe this is a form of exploitative practice, because women instead are being given the old standard practice of being prescribed mood elevators or they are given treatments which focus on the organ, usually a drug to suppress some hormonal response or surgically removing it, which never solves the underlying problem.

Now I'd like to move along to another issue that I think is extremely important. The use of male physicians examining female patients' most intimate body parts where the female has not been given the choice of having a female examiner is an exploitative practice. Women have been seduced into tolerating this type of examination process only because it has become an unquestionable or unchallenged standard practice. I suggest to you that this type of control over women's bodies and the fact that women have had little access to having female practitioners has spawned and nurtured the fraternity that has encouraged sexual abuse in health care.

Individuals must have access to services provided by health professionals of their choice, and while it is allowed in the provisions, it's going to have to be something that the government will have to wrestle with in terms of allowing, over time, quotas or some means of getting the appropriate number of practitioners to meet the demands for females.

For instance, if a female wishes to see a urologist, it's almost virtually impossible for her to get a female urologist. As far as I know there are about two or three of them in Canada. I tried contacting both the College of Physicians and Surgeons and the Royal College of Physicians and Surgeons and neither could give me a gender breakdown, so I'm dealing with an old piece of information. I would suggest that given this awareness, this government must begin to restrict the number of openings for male urologists as specialists until the quota for this specialty is equalized by the demand for female urologists. Similar quotas should apply to obstetrics and gynaecology.

Recognizing that sexual abuse is a gender-related problem, this government must ensure that all women have female practitioners if this is their choice. Harassment and exploitation at the hands of professionals create devastation for a lifetime. It is a stress-induced sentence that is incalculable in its cost, both financially and socially, both to the victims, their families and that of the perpetrator and his family.

I want to talk to you about choice of health professional in terms of how medicare is set up to fund and pay for health services. It seems that unless they are deemed to be of a medical nature, currently, it's very difficult for nurses, psychologists, massage therapists, naturopaths and others who are external to medicine and who are often excluded from helping consumers get a choice of paid service. This government should ensure that within the RHPA, as in the provisions that are set out, more services of those professionals who make up the RHPAs will be paid so that consumers do have paid accessibility to their choice of service provider.

Many of the alternative health care professionals are female, who with little integration of additional training can assist women to maintain a high level of wellness and health care throughout the continuum of the life cycle and who can assist this ministry to make the best use of existing health professional services.

I want to go on to legal reform. Underlying all fairness in the system will be reform in the hearing process. The process, which is now clearly quasi-criminal, must be moved to be more of a civil proceeding.

Hearings that are of a sexual nature in particular should be removed from the college and a separate tribunal should be set up to hear cases of sexual abuse, where the tribunal members are both knowledgeable about the dynamics of a sexual abuse relationship and have no attachment or professional affiliation to the member. Preferably, they are chaired by a legal member who is trained in civil procedure.

The college argues it already tries cases in a civil context. Were that true, the following would be implemented: All complainants would be represented by independent legal counsel and there would be no longer the role of a prosecutor, a strictly criminal procedural tactic. Remember, complainants are not charging professionals criminally. They are lodging a complaint as part of the process.

All defendants who had previous convictions or suspensions and were on the record for sexual abuse matters would have this evidence disclosed by the complainant's lawyer, as in any civil proceeding. Presently, this evidence is not permitted under the current hearing process, as it is said to be prejudicial, which is also a criminal tactic.

1810

Recommendations: That all evidence be disclosed that is supporting any sexual behaviour, past or present, as in any civil proceeding; that all complainants receive paid legal representation by the college; that the role of prosecutor become redundant; that the Canadian Medical Protective Association costs not be underwritten by this government.

The medical profession is the only professional group that has its liability insurance underwritten. Aside from being the wealthiest professional group, which could perhaps afford this insurance coverage, it's discriminatory in that it doesn't allow for any other professional group to be covered. I think the $37 million that goes to cover this questionable funding could be put to better use in the way of either compensating victims or setting up tribunals, or in some other way, but I certainly don't think it should be aiding and abetting bad doctors.

All complainants whose evidence was considered valid and who wished to testify should be given the right to a hearing and not asked to withdraw their complaint to allow for plea bargaining, which is another criminal tactic, and it's well suited to both the college and the defendant member. It would be in the college's interest, particularly in light of proposed compensation, for charges to be dropped, because if you can get one guilty finding and get the doctor's licence revoked, which it may well want, it frees the college of the financial obligations to any other witnesses who come forward, because if they don't get a guilty finding to their allegations, their case is simply withdrawn.

It also assists the professional to get one guilty finding, because to date it's been very obvious that the courts seem to overturn many of the decisions that the college has for revoking a doctor's licence.

Before I end my presentation, I'm going to just generally make a comment. I really feel privileged to be able to come here today. I also feel privileged because I've been involved with the consultation process along the way. I never got involved. I'm not a political person and I've never been involved in politics, but I really think this has been a wonderful way of feeling like I'm getting involved to do something that I think is important.

A comment that I don't have in my brief, because I had to make it fairly brief, was that I think that this government must support mandatory reporting on all levels. After listening to a very articulate presentation by two psychiatrists, and I'm sympathetic on the one hand to what they have to say, I really am not sure whether psychiatrists and doctors just don't feel, and perhaps other professionals, that mandatory reporting should be able to be done on a reporting basis as well as lodging a formal complaint. They should really see the difference.

A patient might not want to lodge a formal complaint, but they jolly well might want to report the doctor. My fear for the patients they're talking about is that once they get to a level where they're feeling a little bit better and they find that some of their friends or somebody else has been abused by the same psychiatrist, they're going to be in an awful position when the patient says to them, "But why, when you knew and I wasn't in a position to really make that decision, did you not at least report him?" I really can't see, from anything I've studied or thought about, why mandatory reporting should never exist.

To conclude, I only want to say that I think it is important that this government balance a patient's right to justice and that they are not lost in the process. I get the feeling that the government is working very hard in this regard and I hope that this is the way it will be. I want to thank you. I appreciate your interest in having me make this presentation and submit my brief.

The Chair: Thank you very much for the written brief. While you weren't able to read everything, we have it so that we'll be able to look at that. We have time, just briefly, for questions.

Ms Haeck: Actually, Ms Rankin, you have answered, at least to some degree, my concern, which is that the whole duty to report be there as part of the practice, that if someone knows about it, they should be reporting it.

The OMA is putting forward something called the "duty to intervene," and there are several parts to it. One of them I think is something that you should know exists. It puts forward the idea that it might be incumbent upon the professional, hearing from you, particularly in the case where there is a sexual impropriety, words that you may feel somewhat uncomfortable with to go to speak to the perpetrator. As I say, there are several levels to this, but that's one of the ideas being put forward. As a survivor, how do you feel about that kind of action?

Ms Rankin: Is that to intervene and replace the actual reporting to the college? In other words, we'll do this first?

Ms Haeck: That is being suggested as an alternative.

Ms Rankin: I don't think it should be an alternative. I think it's quite okay and probably should happen if a doctor or another professional recognizes something's going on. I don't think it should be a substitute, because it's the old boys' club that's always worked and it sounds like it's still working.

The Chair: Mr Rankin, thank you very much again for coming before the committee. I apologize for the need to split your presentation into two.

Ms Rankin: That's okay. Thank you.

SHARON DANLEY

The Chair: I call on our next witness, Ms Sharon Danley, if you would be good enough to come forward. I might just say to members of the committee that Ms Danley has brought with her a video which we will be seeing at a later date. She is going to make her submission to us and be prepared to answer any questions. She has also left with us some attachments. Perhaps, Ms Danley, you would just introduce yourself and also your colleague or friend who is with you.

Ms Sharon Danley: I'm Sharon Danley and I'm with the Coalition for Medical and Legal Reform. To my immediate left is Velma Demerson, also a member of that particular coalition.

Ladies and gentlemen, I'd like to thank you for this opportunity to present a firsthand account as a survivor and my colleagues' grave concerns over Bill 100. My presentation was to be in the form of a video made back in March. However, we'll let that go for another time and I'll be happy to attend to answer any questions at that point.

My written brief also includes my victim impact statement, as given last Wednesday at the sentencing portion of my hearing. It gives an honest, graphic overview of some of the trauma and violations incurred not only from the offending doctor's original assault but as well from the reliving of that assault during the hearing and the multiple violations I have incurred throughout the whole process of discerning justice.

To give you just a quick overview of why I went to the college, 16 years ago I took my two-year-old critically ill son to see his doctor as he was in severe cardiac distress and my fear for his life was my driving force. Dr Cameron quickly examined him and consistently diminished my concerns for my son's life. I picked my child up and then, to my horror, I was sexually assaulted by this doctor with this dying child in my arms. It bears repeating.

Hugh Cameron lunged at me, forcing his lips against mine, putting his tongue deep into my mouth. His eyes were fiercely glazed and he was panting. He vigorously manhandled my torso, particularly my hips and my breasts. He then put one hand inside my blouse and pawed at my one breast while I was holding my sick baby against the other.

1820

Three days after the showing of this particular tape that I was going to show today, I was told to appear in front of the tribunal, with less than 24 hours' notice, to reopen the case with what proved to be vindictive, false testimony from an ex-intimate which was blatantly irresponsibly investigated. I will override my keen temptation to disclose what incredible, irreparable damage that did to me, except to say that it cost $32,000 and two valuable days of court time. And the college dares to complain about expense and overload.

On June 25, Hugh Cameron was found guilty of sexual impropriety. It was in fact a gross crime of sexual aggression and assault. Calling it improper is an insult, diminishes my pain, the violation to my son and the seriousness of my assault. Even though I was violated with my dying child in my arms after Cameron completely diminished my concerns because he was clouded by his lust for a vulnerable, scared mother, the college didn't see fit to find him guilty of professional misconduct arising from his medical negligence. If this wasn't unprofessional, in fact grossly negligent, then what in the name of justice is?

Examples of our concerns over definitions of sexual violations -- by the way, Hugh Cameron was employed for five months by East General hospital after his guilty finding. They gave the coalition legal excuses but not moral reasons for this outrage. Pretty irresponsible, isn't it?

When my psychiatric and sexual herstory were subpoenaed against my vehement protests and I informed the players that I found numerous factual inaccuracies, distortions and minimizations, I was completely ignored. I didn't have the necessary legal counsel to help me fight for my emotional life in this and other areas of concern. The question begs asking, why wasn't a psychiatric assessment done on the offending doctor, rather than me, as part of the process?

Examples of not having full-party standing -- while on the subject of psychiatric and psychological competence, many of us find it astounding this particular community continues to demonstrate how dysfunctional it is in the areas of sexual assault, revictimization and reliving incest memories. They are dangerous to women's sexual healthiness and wellbeing.

Example: One of my practitioners suggested that I should look into my past -- because, after all, I was an incest victim -- rather than help me develop coping skills to deal with family, police and the children's aid for not taking responsible action in responding to and making amends for my daughter's sexual violation.

Another practitioner, while attending me through the proceedings where my past was being defiled and thrown in my face, took me through incest memories against my stated will as a form of therapy. It took me a week to get out of my depression and out my bed. Fortunately, I terminated her. Other victims don't possess this strength due to their therapy. Scary, isn't it?

Yet this is the very community that claims to know how to categorize and therapize victims and also claims to know how to rehabilitate perpetrators. My medical doctor dropped me because I wouldn't get therapy or take psychiatric drugs to numb me during this hearing. Treat the reaction, not the action. The fact that I haven't seen a therapist or even taken so much as an aspirin in almost a year and have managed to survive what I have speaks volumes for my own skilled modalities of healing. In other words, therapy of choice must absolutely be the victim's choice and supported monetarily by the offending physician and the college which licenses him or her, whom it is responsible for as well.

It was proven that had even one of these therapists reported my assault, other women could have been spared this man's harm. Nobody even suggested, let alone asked me about, reporting, and then there was never a suggestion of seeking redress for the assaults done to me and my son.

If the processes of discipline were made much safer for accusers, then it is our first belief and conviction that many more assaults would be reported. It could be a validating experience rather than a rape, as now presently exists.

There are a few good therapists out there, but that's all. What we have heard from the psychological community around this bill and its assessments is downright dangerous. I repeat: dangerous. Surely in the 1990s we all realize that street education far outweighs academic theory by a long shot. Simply put, if you haven't walked the walk, don't talk the talk.

Another grave concern that we've heard from these professions is their concern over misinterpreting touch. Again they don't know what they are talking about, obviously haven't listened to us and are foolish in their assumptions.

Examples: My daughter was examined by a neurologist for which I was witness at her request. She was asked to completely disrobe, including all underwear, and even though she had a gown on, it was open at the back and she had to parade herself for this offender under the guise of examination. My daughter broke down to me while getting dressed, saying she felt strange and violated and bad. It took me three hours after that examination to help her deal with this assault, a case where the doctor didn't touch her, but he assaulted her anyway.

On the other hand, I have been receiving massage therapy for my myofibrositis by a male massage therapist. He has shown me complete respect and never once have I felt anything but integrity and healing in his care.

It is apparent nobody seems to get it, that touch isn't the problem. It is the sexualization of thought and acting on it that is the problem. So let's get with the program. Listen to survivors, for heaven's sakes. They are the knowledgeable ones and they know what they are talking about.

Now a nimble list of the losses I've incurred: The termination of my first marriage as my husband wouldn't support me confronting Cameron; a breakdown due to exhaustion 18 months after the assault, resulting in my children never being with me on a permanent basis again.

Poor therapy put me back in a vulnerable state and I was sexually attacked, once again triggering the feeling part of the memory of Cameron's assault. My second marriage terminated just before the hearing commenced as my husband wouldn't support or understand my pain and my need to overcome it in seeking redress. In this redress I was revictimized, traumatized and, in short, my mouth taped in the name of no legal protection while I was publicly gang-raped. I was cross-examined mercilessly without intervention, reprimand, legal protection or therapeutic counsel to help me with the trauma.

I was psychiatrically labelled with disorders when they were appropriate orders of survival, but was smeared for these very techniques. I was wrongfully psychiatrized and hospitalized as a result. My credibility was attacked. My character was slandered and my profession slammed because I am an actress and singer, as well as a businesswoman.

I was put on trial for accusing a doctor of sexual assault. My intelligence was put on the rack, my heart bludgeoned with the harpoons of cross-examination. My emotional legs were spread wide open for the world to examine, my spiritual guts graphically ripped apart, the intimacy of my bedroom stalked and now I can't even enjoy the sexual pleasures and comforts as I once did because of the testimony of the ex-intimate.

I was betrayed and lied to by the college. Most of my family has abandoned me. My children have become estranged over the hearings. Friendships of 20 years no longer exist, my sense of humour turned to the macabre.

My solitude and peace of mind have been replaced by unmentionable thoughts. I am no longer armoured for the abuse our society is awash with. My artistry is intruded upon. I've lost singing engagements because my emotions aren't healthy enough to perform.

I've lost incalculably in my tenure, income and potential gains in business. Two of my companies have become dormant. Several creative projects have been shelved. I have fallen behind in computer skills and the development of the latest business technologies. I can't keep abreast of my paperwork for the first time in my herstory. My taxes are way behind. Legal action is being taken for failure to maintain a business contract as I have no funds left. I've used up all my RSPs and savings. My credit rating has plummeted. I can no longer concentrate on or afford my continuing education. I've spent virtually 12 hours a day for the last 18 months defending myself and licking my emotional wounds, so I haven't been able to have a conventional job.

Now, I am forced barely to exist on social services. I've lost my home, sanctuary and place of healing. I have no fixed address. Because I haven't been physically beaten by a spouse in the last six months, it doesn't constitute an emergency to get affordable, safe, private housing. It's now difficult to get proper medical treatment. I have scrambled thinking. I can't process under stress. I have anxiety seizures, post-traumatic stress disorder, diffused myofibrositis, which is like being hit with an emotional Mack truck and every fibre in my body hurts.

My doctor dropped me after Cameron's verdict came in. One week before I was forced to leave my home at my most vulnerable time, I again was sexually assaulted by a chiropractor during a treatment for myofibrositis. I've lost everything and then to top it off, sexually assaulted again by a regulated health care professional because I was made so vulnerable. Now I'm being threatened with legal action because I spoke out about him.

There are those in this arena who have the audacity to suggest a $10,000 price tag be hung on my life for therapy to get over these assaults in a year, and further suggest this money should go back into the very systems that assaulted me in the first place.

This, ladies and gentlemen, is not only the ultimate insult, it's scary to think that supposed intelligent, informed people would even consider this further atrocity, let alone be concerned with having to make responsible monetary amends to the victims of these crimes. I thank you.

1830

The Chair: Thank you, Ms Danley, for your submission. I think we recognize clearly the difficulty for you to come before the committee, but we appreciate the fact that you have done that. I don't know if there perhaps are a few questions.

Mr Jim Wilson: Thank you for your presentation. Just a general question: I understand your points with respect to standing and a number of things that are addressed in the bill. Are you generally pleased with the legislation now?

Ms Danley: Except for those that I have mentioned and that the other survivors are speaking of. Those are our most major concerns.

Mr Jim Wilson: Okay. I appreciate that.

The Chair: We have the attachments to your submission and we have the video. We will be in touch on that and also to make sure it's returned to you.

Ms Danley: Fine. I would like to let you know that I'm again appreciative of the opportunity to speak and appreciative of the fact that the Ontario government is addressing violence against women. I would be happy to make myself available at your convenience for any further consultation.

The Chair: Thank you very much.

ONTARIO PSYCHIATRIC ASSOCIATION

The Chair: I call our next witnesses, from the Ontario Psychiatric Association, if they would be good enough to come forward.

Welcome to the committee and perhaps you would be good enough to introduce yourselves. Do we have a copy of your brief? I'm just searching through my --

Dr Joan E. Bishop: No, you don't.

The Chair: Do you have an extra copy? We can have copies made if --

Dr Bishop: No, we don't have a copy.

The Chair: All right. Then just go ahead and if there's time, we'll have questions at the end.

Dr Brian Hoffman: My name's Dr Brian Hoffman. I'm a psychiatrist. We're here representing the Ontario Psychiatric Association. This is a voluntary organization of psychiatrists. Psychiatrists are also medical practitioners. We number about 1,200 practitioners in the province. The association is devoted to improving psychiatric care and the knowledge, skills and attitudes of practitioners. We do this through meetings, case conferences and the literature.

I'm chairman of the legislative review committee of this organization and I came here to accompany another member of the organization who will give the main part of the presentation and I'll be available for answers at the end.

Dr Bishop: I'm Joan Bishop and I'm the president-elect of the Ontario Psychiatric Association.

Before I talk, I really have to respond to what the previous person was talking about. I spent a lot of years in private practice listening to my women patients, and one of the reasons I have recently gone back into academic medicine is that my major interest has been in helping my colleagues, helping the medical schools listen to the voices of women and try to educate them, particularly around women's health issues, women's mental health issues, from a woman's perspective.

With respect to the issue of sexual exploitation of patients, my major interest has been on educating medical students, interns, residents and my colleagues about prevention of sexual exploitation, using the concepts of understanding the social context of women's lives and how women have really been oppressed by many of the institutions in our society.

I'm quite grateful that this legislation has come forth, because I think it is doing something to empower the exploited patients, the majority of whom have been women.

You've had lots of comments from lots of professional organizations on the bill. I choose only to talk about two things. One is the issue of mandatory reporting and the other issue is the subsequent treating professions for people who have been exploited by a health care professional.

On the mandatory reporting issue, as a practising psychiatrist I would have no problem with the mandatory reporting of sexual intercourse or other forms of physical sexual relations or touching of a sexual nature, even if the patient told me that they didn't want me to report them. To me, these are grave and serious injustices that are done to the patients. I think that part of the legislation is a workable one and actually would, overall, benefit patients.

Where I would have more difficulty is in the third category of sexual abuse, and that's having to do with behaviour or remarks. Where I would have the most difficulty is when my patient tells me about these and then says: "But please don't tell anyone about it. I've stopped seeing my therapist, but I don't want you to tell anybody because although they did these things and it upset me, I don't want you to harm them."

I've had this happen and it's really highly problematic for me because I was taught, as a physician and a psychiatrist, not to break your patient's confidences. I have to feel quite certain, when I break their confidences, that I'm doing them more good than harm. That's why I think it's more problematic for virtually instantaneous mandatory reporting of remarks and behaviour of a sexual nature.

When this happens to me, I would certainly obviously follow whatever the law is. I think most of my colleagues would actually do that. But it is quite difficult if the patients really don't want you to do that. The suggestion of the duty to intervene that the health coalition had suggested, where there was a series of things that you could do before you embarked on mandatory reporting, particularly for the words and gestures, seemed to be some kind of a compromise to that difficult situation.

Again, I would really like to emphasize that the problem there is not the actual mandatory reporting. The problem is doing something that your patient doesn't want you to do, if they request that you don't do it.

The second issue that I thought seemed worth addressing is the issue of the subsequent treating therapist. The legislation as it stands states that the subsequent treating therapist does not have to be a member of a regulated profession. My concern with that would be that I understand the reason this bill is being drafted is to offer more protection by regulating professionals who will be treating people with problems, so that there is then a regulatory body that can police the actions of the professionals. If the patients who have been already victimized go and see someone else and it turns out that subsequent treating professional isn't a member of a regulated profession, how are those patients, if they get subsequently victimized, going to get any redress?

1840

I don't have an answer to that, and I realize that there may be -- for instance, the social work profession isn't a regulated profession and there are a lot of really good social workers who would be obvious candidates for doing good therapy with patients who have been abused by other health professionals. There may be some way of dealing with that profession by profession or something like that. But to me, to leave people who have already been victimized open to a process that may unintentionally revictimize them and then they wouldn't have any recourse seems inconsistent with the intent of Bill 100, which I understand was to prevent the process by getting more regulations.

Those are basically the only two things that I thought we should emphasize today. If you're interested, I don't have a copy of the brief but I do have some information of papers that I published on prevention of sexism in medicine and guidelines for management of family violence, which are papers that I had published on behalf of the Canadian Psychiatric Association just to demonstrate some of the interest that I've had in this area, in case any of you aren't aware of these.

The Chair: If you could leave those with the clerk, we could have copies made for members of the committee.

Dr Bishop: I brought 12 copies, enough for the committee members, if you're interested.

The Chair: Oh, you did, fine.

Dr Bishop: Again, they relate to the issues that are being dealt with here, but it isn't the brief that we're presenting.

The Chair: That would be helpful to have. If you could give them to the clerk, he will make sure the committee members receive them.

Dr Bishop: Do you have any questions at all?

The Chair: Does that conclude your formal presentation?

Dr Bishop: Yes.

Mr Jim Wilson: Thank you for your presentation. The ministry has indicated that it's going to show us language with respect to a proposed amendment to the amended bill, which, in dealing with clause (3)(c), part three of the definition regarding behaviour or remarks, although there's mandatory reporting right through the definition, there are different levels of treating the different parts of the definition. For example, as you know, clause (3)(c) doesn't necessarily have to go to discipline, but the college may recommend assessment and possible remediation.

Does that do anything to alleviate your concerns? Or your concern, so I'm clear, is strictly on the reporting end of it?

Dr Bishop: My concerns are from the point of view of the patient. If they don't want me to say anything, I have to feel that whatever I'm going to do is going to help them in the long run. Again, as I said before, it may be in that situation if six months from now, after they feel stronger as a result of having someone believe their stories and validate the pain that they have experienced and listen to them and let them come to the position of strength where they can actually agree to have it reported, then I would see that as an ideal result, because then they would say, "Yes, I'll let you do it." The problem is when they say, "No, you can't say that." That's the problem for me.

Mr Jim Wilson: The way you see this legislation, and I tend to sympathize with you on this point, in treating a patient -- I get the impression from psychiatrists that there's no optimum moment, or it's not very clear when you should have the discussion about reporting.

Dr Bishop: If anybody ever told me, I'd certainly have a discussion immediately to give them information that this is inappropriate behaviour, no one should be subjected to that sort of inappropriate behaviour, and: "I will give you the telephone number of the college because this is something that you can complain to the college about and, if you need help in formulating the complaint, I will do that. I'll do whatever I can to help you in that process." That's not the issue. The issue is if they say, "No, don't you dare do that." That's the problem.

Dr Hoffman: Along the same lines, you sometimes have to think about why would a woman not want it reported, which may seem strange because she's told someone. But if she told it knowing that at some point someone is going to approach her again, it increases her level of anxiety. That doesn't go away easily.

In addition, sometimes you don't know what pressures the female patient might be living under with her husband or family members who are pressuring her not to report it, and once that becomes known, she's terrified -- and this in fact happens fairly regularly, the woman is then thrown out. So until the woman can gain some control of her life and say, "Now is the time I can live with this anxiety and this risk," you wind up taking away the patient's autonomy and making decisions that have some danger in a society that otherwise isn't perfect.

If it were a perfect society, she'd be able to protect herself and her husband would understand and the family would understand, but we don't live in the perfect society. So the patient must be in control of these decisions, until it becomes of such a severity that there's an overriding public good. That's why we think there's a need to separate (a), (b) and (c).

Mr Jim Wilson: I understand. Your point has been made often. I'm going to ask that question to the parliamentary assistant. What were the discussions or the thoughts of the ministry around the question of the patient's right to not have this go to mandatory reporting, the patient's right not to report?

Mr Paul Wessenger (Simcoe Centre): I think the first answer to that is that the indication is that in the bill, of course, you require the consent of the patient before the patient's name is disclosed. It was felt that, even though these reports would not be acted on without the name of the victim in the report, it would be very useful to have this type of information for the college.

I think in particular if you've got, for instance -- I'll give you an example -- a succession of complaints about a particular medical practitioner, even though without the name disclosed, it might then cause the college to say, "Perhaps we ought to investigate this particular practitioner's practice independently." That might be one aspect.

The other is that there might be an aspect if the reporting was of, say, the verbal or behaviour aspect, the item (c), then it might be appropriate to independently consider the need for some sort of remedial action, some re-education or something of that nature that the college might consider, for instance, if you had even just, say, geographic. If you had a particular area that had a problem arise with respect to inappropriate remarks, it would certainly give an indication to the college that it might be appropriate to have some sort of educational programs in that area.

Mr Jim Wilson: But even if all this is explained to the patient and the patient says, "Fine, I understand all that and I still don't want you to report it," it puts the treating practitioner in one heck of a predicament, I would think. Did you contemplate any absolute override for patients who say, "Look, I don't care if the state wants all this stuff collected, I'm the patient, I'm instructing my treating practitioner and I don't want it reported"?

Mr Wessenger: Except that perhaps I could indicate there is the test of reasonable grounds and also the test of the qualifying language with respect to seductive, exploitative or demeaning remarks. I think certainly hearing the comments they would at least be able to cull out those sorts of situations where they didn't feel that on reasonable grounds they fell into that category, and the ones that are demeaning or -- I think it's important, the overriding -- that the college has on record the fact that there may be a problem with a particular practitioner, because the name would not be disclosed.

Dr Bishop: One of the parallels I can draw is that over the years I've treated a lot of battered women who, it's obvious to me from the first moment I see them, are living in a very abusive relationship with a person who they, in my opinion, shouldn't be living with. But it hasn't done me any good over the years to try to tell them what to do, because often not only are they being beaten by this person, but they actually love some aspect of this person or they wouldn't have started to live with him in the first place.

Until they feel powerful enough to actually say no or call the police, I don't have a right to make them do anything. Even though I wish I could take them home and look after them, I can't do that. But my experience has been that if I help them by validating their situation and help them feel more powerful, they usually are in the end able to do something that's really very good for themselves to get themselves free of these abusive relationships. So timing is sometimes really important. If people have enough time to feel more empowered, they can actually let you help them more. But sometimes at the beginning they don't.

Mr Wessenger: The only thing I just might add is that survivors do overwhelmingly support the mandatory reporting of item (c).

Mr Larry O'Connor (Durham-York): I appreciate your presentation. One thing that concerns me, unless I've mistaken what you've said, is in section 3 where we talk about the different categories, (a), (b) and (c). You appear to be confident that the patient's confidence has been violated in cases (a) and (b) but perhaps not (c); or maybe I'm reading this wrong. I think that the violation is still there and perhaps you can expand on that a little bit.

Dr Bishop: It has to do with the level of seriousness of the violation of the patient, the level of seriousness of the abuse. It's clearer, I think, with (a) and (b) and not quite as clear in (c). Again, the only situation that I would really have difficulty with is if the patient really doesn't want me to. With the first two, I would feel more confident that I was protecting the patients more than I was harming them by mandatory reporting, whether they wanted to or not.

Mr O'Connor: In case (c) then, perhaps if the patient wants to make complaints, then it would be your role to validate that and to make sure that any information that was required would be there and you'd fully support them.

Dr Bishop: Yes, that's right. If that's what they wanted to do, absolutely.

Mr O'Connor: I'm still not comfortable with it. Have you seen the amendment to that?

Dr Bishop: Yes.

Dr Hoffman: I have one small comment about the words "exploitative" and "demeaning." The word "demeaning" is to my way of thinking far too distinct and far too broad. I would certainly agree with "sexually exploitative."

To make a judgement on "demeaning" which could be largely in the patient's eye rather than intent or in actuality -- a gown, a look, an internal examination are all felt as demeaning; but were they demeaning? -- is a jump that makes it very hard to put that in the category of mandatory reporting at all. I think that must be defined in regulations or elsewhere to make it practicable at all. It's just that one small one.

The Chair: Thank you very much for coming before the committee this evening. I'm just going to have the committee take a short adjournment so that they can grab a very quick sandwich and make sure that everyone is alive and able to pay attention for the rest of the evening. It will be a short one. We will adjourn until 7:15 and reconvene here at that time.

I might just mention to people, there is a ceremony that is about to begin in the main hall, so you might want to keep your eye out for that and not get caught up. We'll begin again here at 7:15. The committee stands adjourned.

The committee recessed from 1854 to 1918.

I KNOW NETWORK ONTARIO COSMETIC SURGERY HEALTH INFORMATION INC

The Chair: Good evening once again, ladies and gentlemen. We'll reconvene our hearings on Bill 100. Our first representatives are from the I Know Network Ontario, if you would be good enough to introduce yourselves and then please go ahead with your submission.

Ms Kathleen Lumsden: My name is Kathleen Lumsden of the I Know Network Ontario Cosmetic Surgery Health Information Inc. I would first like to thank you for the time to view our opinions here this evening. Also, we're not public speakers, so bear with us.

Through the past year and several efforts to try and set up appointments with the College of Physicians and Surgeons, as well as the Honourable Ruth Grier and the Ministry of Health, with no success in making these necessary appointments. With the ministry, we wish to approach that any type of bad surgery and the public must doctor-shop, as they call it here, sometimes going out of the country for testing and treatment for these problems at their own cost. This shopping for a doctor here at home has put a burden on the health care system, and additional costs which we otherwise feel not necessary if we had more protection against these abusive things by the Ministry of Health. A separate body other than the college for public complaints -- as we feel, as it stands now, it smacks of favouritism. It would be our position that a separate and public body dealing with incompetency issues would not only seem unbiased and fair, but it would also serve as a valid sounding board in dealing with public concerns relating to health issues.

I would like to read a small part from one of the college's discipline books. We have had a copy for your convenience to read. I will not read it all because it's quite lengthy. There were several doctors involved in this and partway on page 2, I believe the second paragraph --

The Chair: Sorry, is that one of the documents you've given us?

Ms Lumsden: Yes, it's from the discipline book of the college: Report of Proceedings, Discipline Committee.

The Chair: Oh, right; sorry. Here we are. Do members have that to hand? Dated March 1991? Please go ahead.

Ms Lumsden: There was a doctor monitoring a patient with hyperglycaemia and he did not prescribe strict diet or oral agents for insulin. As we go on, the dates are so close together. Then a neurologist was brought in. A Foley tube was used -- still only a diuretic. I think most of us know that with a diuretic you lose the fluids from the body but will not have insulin. We feel that this is a sad case here where this woman had died from a misadventure, as they're calling it, from a doctor who was reprimanded at the college and left at that. They called it an unfortunate situation.

I called and wrote a letter about this and I said, "How dare you take life so lightly." When a doctor has not prescribed proper medication for the problem, then the doctor should be reprogrammed or retrained in the field. Why a neurologist? It should have been an internist in medicine who knows about diabetes. This lady doctor was only reprimanded; they saw no reason to teach her or retrain her or reprogram her. We feel this is inappropriate.

On the issues of sexual abuse and its definition and making mandatory reporting of any incidence of medical incompetency witnessed by another professional, we would heartily endorse such changes as we feel these changes are long overdue for the public's interest.

I would like to say there are more cases of people with health issues from surgery abuse and refusing treatment on the grounds that it was elective. Also when these ladies or men go for testing or treatment, they have been just pooh-poohed.

This, to me, is a form of criminal negligence, knowing a problem exists and refusing to help because of not wanting to be involved. That is why the I Know Network feels very strongly that mandatory reporting must be included in Bill 100.

I have many more issues, but I thank you for this time allowed to speak on behalf of the I Know Network. Before I leave, I would like you to hear from a victim of breast implants, in her own words, on what she has tried to live with, Ms Elayne St Pierre, one of the members of our group.

Ms Elayne St Pierre: Good evening. I'd just like to tell you a little bit about what's happened. I had implants 18 years ago and within two years of having them put in I became ill, but I didn't know it was from the implants and I had been to doctors all through the years. They said I had rheumatism; they diagnosed me with all these different things. They gave me Valium for seven months; I developed an ulcer from that. To make a long story short, I've been from doctor to doctor. I've changed family doctors many times because I feel that they haven't helped me. Nobody could find out what was wrong with me.

In 1983, I requested a mammogram. At that time I was 40 years of age and my doctor didn't want to give it to me, but I demanded that I have it done because I had hardening and lumps in my breast and I had developed allergies, which I never had before. After I had the mammogram done, the doctor told me that I was fine, everything was fine, that I had nothing to worry about, that there was no evidence of cancer.

Well, through the years I got more ill. I was sick all the time. I developed fibromyalgia. I had sleep disturbance. I had chronic fatigue, allergies. I just kept developing all these things that I never had before. Then in 1982 I finally found a surgeon -- the surgeon who had done my operation was deceased now -- to remove the implants. When they removed them, my whole right implant was in fact gone. There was no bag; there was nothing. The whole thing had gone through my body and the left one was partially ruptured.

So when I got my medical records after the operation, I found out that the radiologist who had done the first mammogram in 1983 wrote in his report that I had two implants in one breast, when in fact I only had one. What happened was that the implant was clearly visible, that it was ruptured, and part of the implant had gone down into my armpit, which accounted for the lump I had under my arm which the doctor didn't know about.

But at the time you couldn't get your records. The doctor never asked me if I had two implants in one breast. The radiologist never asked me. So I just went away thinking everything was fine when in fact if I had found out in 1983 that the implant was ruptured, I could have had everything removed and I probably wouldn't be as sick as I am now.

Therefore, I feel the medical profession, somebody, failed me with this. I landed up having to have breast reconstruction done. I had to lose part of my right breast tissue because of the damage that the silicone has done. I am still sick. I've done all the research on my illness myself. The doctors haven't done it for me. They've sent me to psychiatrists because they don't know what to do with me.

At this present time, I did find one doctor -- I belong to a pain clinic which I found on my own -- who is giving me some kind of help. I would just like to know: Where do people like myself go, you know, to get help? Why doesn't somebody just say they know what's wrong instead of keeping saying they don't know and doing all these things that aren't helping? I feel like, why couldn't they come up with some kind of a clinic with certain doctors just to treat people who have the problem that I have instead of all these thousands of dollars that are being spent on all these doctors we're going to and all these tests that we're having to have done? I'd just like to know where we stand with the Ministry of Health on this problem.

I could tell you more, but it would take a long time.

Ms Barbara Kerr: Good evening. My name is Barbara Kerr and I also am a victim of breast implants. I'm a member and volunteer of the I Know Network, Ontario branch, and I would just like to read briefly a letter, what some of my feelings are.

I met Kathleen Lumsden of the I Know Network Ontario Cosmetic Surgery Health Information Inc at the time when I was trying to survive a living nightmare, the same as Elayne. I identify with her 100% in a lot of issues.

I was a victim of silicone breast implants. Kathleen spent hours on the phone with me day after day reassuring me that she would be by my side through this terrible ordeal. Kathleen agreed it was not just a nightmare but it was in fact a reality and that I was not going off my rocker and I certainly was not the only one living this hell. She was determined to get the help I so desperately needed. Kathleen is diligent and does not take no for an answer when it comes to getting the information and help she needs for her ladies. Kathleen not only made the appointments I needed with the doctors, but she would come with me, again reassuring me of her support.

I would like to take this opportunity to thank Kathleen for everything that she has done for me and countless others in despair. It's through Kathleen's courage, determination and tender, loving care that I have made it this far. I'd just like to take this time to say thank you, Kathleen. On behalf of myself and all the other victims, thank you very much.

Ms Lumsden: I think you'll see some of our research added in there from Dr Campbell from Houston, Texas. We have sent many, many times to different doctors and we also have a doctors list there. It took us over two years to acquire doctors who were sympathetic and understanding enough to work with us to help these ladies. We now have a pathologist at one of the major hospitals helping us. We have Dr Pierre Blais, whom I'm sure you all have heard of, on medical devices in Ottawa. We have an immunologist, pathologist, neurologist, psychiatrists and cosmetic and plastic surgeons.

But there's only so much you can do. We're not funded and so far it's come out our own pockets. We also are trying to educate the public. Twice a year, we put forums on and bring these doctors in from Houston, Ottawa and our own here in Toronto and it's quite costly. I really feel the ministry should be educating the public, not the public educating the public and at their cost.

The Chair: Thank you very much, not only for your presentation but, as you've mentioned, a number of attachments to your submission which we'll have an opportunity to look at, and I thank you very much for coming before the committee.

1930

FEMINIST WORKING GROUP ON THE CRIMINAL (IN)JUSTICE SYSTEM

The Chair: If I could then call on our next presenters, representing the Feminist Working Group on the Criminal (In)justice System, we have a copy of your submission, Ms Bazilli. Is that correct?

Ms Susan Bazilli: Yes, Bazilli.

The Chair: Please go ahead.

Ms Bazilli: My name's Susan Bazilli. I work at Metrac, Metro Action Committee on Public Violence Against Women and Children, as a legal director. I'm a lawyer, but I also coordinate a group which we've called the Feminist Working Group on the Criminal (In)justice System, which is a coalition of a number of organizations in Toronto that work in the area of violence against women, and the list is in my presentation. You have it before you.

We set this group up a year and a half ago because we were getting more and more stories coming to us by women who were being not only violated, sexually assaulted and abused by perpetrators but also by the system, and while the title of the organization looks like we're dealing just with the criminal justice system, it's basically meant to say that the system is criminal and there is no justice for women in all the systems. So we work as advocates and work in the area of policy in the criminal law system, in the family system and in all the various tribunals that women find themselves in.

Most recently, for the past year, we've been involved in ongoing meetings with staff at the Ministry of the Attorney General around the release of the Martin committee report and crown directives, policy directives, that are going out to all crown attorneys on issues of disclosure and screening etc.

Just to give you a bit of background on the organization, we've worked very closely with survivors of sexual abuse, ranging from being abused by doctors, women who are incest survivors, women who've been sexually assaulted by strangers and the whole gamut.

I think it's really important that survivors are coming here to give their version of what's happened to them in the system because basically I think what we're dealing with -- I mean, we all know what we're dealing with in Bill 100 -- is competing interests, and competing interests between people who are vulnerable and have no power and institutions that are extremely powerful in our society; namely, those of health care professionals.

I want to say that what you've heard from the survivors about how they've been treated by the system, specifically if they're referring to the College of Physicians and Surgeons, is no different from the experiences of women who've gone through any other kind of legal system.

Basically what we're talking about is what I see is an issue of fundamental human rights and justice, and we're talking about the fundamental human rights of women to seek justice through the various systems that are supposed to be in place to help women get justice, and we've seen very little of that in all of these systems.

So I want to pay a tribute to the survivors who have spoken to you and will be speaking to you in the next few days, and also for you to remember that the stories they're telling you about the systems that they've been in are exactly the reason why in all of the talk in the last two decades in this country around violence against women we know that violence against women is the most underreported crime. That's precisely why it's so underreported, because of the way women are treated by the system.

When Sharon Danley was talking to you about the experience she went through, it's very clear that one would question why anyone would want to put themselves through that system, ie, why they would want to report, and that's exactly the same with what happens in terms of sexual assault in the criminal proceedings. What we're looking at is trying to build systems that are accountable to the people who have needs to be met in that system so that we can encourage reporting and encourage the system to respond to the needs of those women.

The basic tenet of all of the systems, from my experience as a lawyer, is that women are not believed. Whatever the system women are caught in, women are not believed. Their experiences are not believed.

One of the reasons why we're glad to be involved in this process is because we're trying to build some accountability through the Regulated Health Professions Act so that we can have systems in place that will allow women to come forward, will treat women's complaints with dignity and that their complaints can be believed.

I don't want to read through my presentation. It's far too long to read. I just want to point out the submissions, basically the recommendations that we're making.

We believe it's very important that Bill 100 have a preamble and you'll read my notation on why a preamble is important and I direct you to the preamble of Bill C-49, which was the rape-shield law, the new sexual assault law that the federal government brought in last year, which felt that because sexual assault was a situation of such grave concern to all Canadians, that in a piece of legislation in the Criminal Code, which hadn't been done before, the federal government felt it was very important to set out a preamble stating the intent of Parliament. I would suggest that provincial Parliament do the same thing with Bill 100.

The definition of "sexual abuse": We agree with the definition as it's put forward, although we also request that sexual harassment be defined as well as when we're talking about behaviour and gestures. In fact, what we're talking about is sexual harassment.

We've seen all too clearly in the recent Walter Hryciuk hearings of the judicial council how sexual harassment is being defined in the eyes of the public and so I think we should call it like it is in Bill 100 and talk about sexual harassment. I also believe that you've heard we think it's very important that "female genital mutilation" be included in the definition of sexual abuse.

In terms of competence, we want the inclusion of "incompetence" as well as "professional misconduct," because there are a range of issues that will fall from having it being one or the other, and that is set out in my brief.

Definition of "patient": We think that "former patients" is important to include in the definition.

We support the regulation-making powers and we oppose the deletion of the regulation-making powers. We think it's very important that colleges be empowered to make regulations.

Mandatory reporting: Clearly, we support mandatory reporting, although we do recommend deleting "in the course of practising the profession" for reasons which are stated in my brief.

I want to respond to some of the questions that were raised before the quick supper break about confidentiality and patients coming before a professional in the course of treatment, talking about sexual abuse by another professional.

I think it's very important that we all recognize clearly we don't want to breach the confidentiality of that patient or client, but that doesn't preclude confidential reporting going forward, ie, to report an incident with the name of the professional who has been reported, guaranteeing the confidentiality of the complainant, because clearly we've heard the reasons why women, especially at times when they're most vulnerable, would not want to go through a hearing. That's not to preclude that at some later date they wouldn't want to.

It's very important that we build a record of complaints against certain perpetrators so that at least we have on record the fact that complaints have been made against certain professionals so that when women come forward or when anyone comes forward with a complaint against that perpetrator, we already have on record somewhere the fact that they have been named as having abused patients.

I think it can be done. I think we can strike a balance between the confidentiality and the rights of the perpetrator so that we're building a record within the confines of that particular college.

The issue of standing, I think, is absolutely crucial. I say that as a lawyer who has been extremely frustrated in all of my work dealing with women who are victims of violence at how they're being brutalized by the system because they don't have legal representation. Whether it's in the criminal system, whether it's in tribunal situations, women's interests are not represented by prosecutors.

It seems, from my experience, that women's interests are only going to be represented when they have standing and when they have their own legal representation. The right to cross-examine, the right to call evidence, the right to do everything that a defendant in a criminal proceeding has the right to do or an accused person before any other tribunal has the right to do. It's absolutely crucial that women have independent legal representation in hearings.

1940

The Chair: Sorry. I know there's singing going on. There's a citizenship ceremony. I understand it won't be too long and I just ask for everyone's indulgence, but please go ahead. We're focused on you.

Ms Bazilli: I can talk over the singing.

The Chair: Okay.

Ms Bazilli: By the same token, I think it's also crucial that women's legal representation be paid for, that the costs be borne by the colleges and by the councils.

There's been some discussion around the standard of proof. I want to make two points about the standard.

We're very, very concerned about what I heard someone refer to earlier about the quasi-criminal nature of hearings. We all know these hearings are supposed to be civil, and there is increasingly an importation of the criminal standard or the criminalization that's being brought into the hearings, which works to the detriment of complainants and often works to the advantage of the defendant.

I think it's very important that we acknowledge that it's a civil test, it's a civil standard, and also that the objective standard be one that is gender-specific, ie, that it's not the reasonable-man standard and it's not specifically the reasonable-woman standard, that it's gender-specific to the complainant. If the complainant is a woman, the standard is that of a reasonable woman, objectively, and if the complainant is male, then the standard is that of the reasonable male, objectively.

A point on funding and compensation: This point is going to be made before you over and over again, that the $10,000 ceiling for the voucher that basically puts women back into the system is ludicrous. We're absolutely opposed to that position and we endorse the setting up of a victims' compensation fund.

When you read through my brief, you'll see that there are a number of places where I've actually imported information from the briefs that were written by survivors, because I don't purport to speak on their behalf. They can clearly speak very eloquently for themselves. So I've just given you excerpts from some of the briefs I've read that have been written about survivors and one point specifically on the survivors' compensation fund.

Another point that we think is really important is that evidence of past sexual conduct, when it's attempted to be used as a defence, is never relevant. Here we're not even talking about importing a criminal standard like we find in the rape shield law; we're just saying it's never relevant. End of story.

Finally, I want to make a point. I know it's not something we're going to deal with with Bill 100, but somebody earlier made the point about health professionals who were unregulated, ie, if women go to a therapist or a counsellor of their choice, what do we do in the situation where that person is not part of the Regulated Health Professions Act?

I think it's something we need to turn our minds to after Bill 100, but we could look at the omnibus legislation in California, where unregulated health professionals are actually subject to an omnibus legislation. Here we're dealing clearly, we all know, with regulated health professions, but we do clearly have a situation where there are abusers among the unregulated health professions. California was the first state in the US to deal with this through omnibus legislation, and I think if we turn our minds to that in the future, then we'll find a way of being able to deal with that.

The Chair: Thank you very much. Could I ask you one question just on your last point? Some of us around this table sat through it two years ago when we did the health disciplines legislation. I don't know if you were familiar with those hearings, but there were a number of groups, some of which came forward to say they weren't ready to ask to become a group or organization with its own council to be self-regulating, but at the time the social workers were requesting either to be included within the registered health disciplines legislation or that there be some special piece of legislation through which they would then be self-governing.

The California model that you refer to: Does that encompass social workers, or has that essentially been passed, that omnibus bill, to capture all of the non-health counsellors?

Ms Bazilli: Health or non-health, whoever doesn't fit into whatever legislation is regulated.

The Chair: When was that passed?

Ms Bazilli: Last year, 1992. I don't have a copy of it. In fact we've spent months, actually, trying to obtain it, but I think we have it now and we'd be happy to give a copy of the California legislation to the committee.

The Chair: Thank you. Any other questions or comments?

Mr O'Connor: One, perhaps: One thing we heard -- actually I think it was Sharon Danley's comment -- was that they feel further victimized when they're turned back in to the system that victimized them when they have to go back there for therapy. I just wondered if you'd want to comment on alternative choices of therapy and the victims having the right to choose that.

Ms Bazilli: I think it's very simple. I think victims or complainants should have the right of choice to a therapist or counsellor of their choice, wherever they are in the system, if it's someone the individual feels comfortable with and trusts. Basically what we're talking about is having to rebuild trust in a profession globally where people have been victimized in the first place, so I think, whether it's regulated or unregulated, what we're talking about is a therapist or counsellor of choice.

I don't want to speak for Sharon, but I think when she said "turned back in to the system," she was talking about when you have no choice. You're just given a voucher and told, "You must go and see X, Y or Z in this particular system." Certainly in my experience, it's taken a long time for women to rebuild confidence in any treating person, regardless of where they are in the profession.

Ms Haeck: Thank you very much for your very excellent presentation. We've had a number of professional groups before us today, and one of them was the College of Nurses of Ontario. They've raised the point that they feel that somehow with the mandatory reporting for other professionals, where say a nurse is working with a doctor, there may be a hesitancy actually to get into the mandatory reporting for a range of reasons, which you've probably heard about. What are your comments with regard to those positions, because they're not the only ones who are raising this but they're the ones who definitely were here today.

Ms Bazilli: I guess if it's not made mandatory, then there wouldn't be any reason to report. If I could editorialize, I would say that certainly if I were a nurse, I would be hesitant to report on someone who was higher up than me in the profession and in the hierarchy. If I knew there was mandatory reporting built into legislation, that would safeguard me in being able to report, because it would be there in the law. We have comparable statutory legislation in terms of reporting child abuse. I would think it would actually provide a safeguard for people who didn't feel comfortable in reporting.

Ms Haeck: What about the OMA's coming forward with what they call sort of the duty to intervene? There are several steps to their procedure for dealing with this, one of which is that for the professional who hears from the survivor, or the victim, that a colleague may have abused, it's then up to the doctor who has heard this complaint to possibly go and talk to the professional and try to sort of intercede on the patient's behalf. What is your response to that?

Ms Bazilli: I heard you raise that earlier. I haven't seen those recommendations. Without seeing the details, from what you're telling me, I would be opposed to it, because what we're talking about is accountability in systems, not individuals being empowered to go and intervene on other people's behalf. We're talking about professionals being accountable to a system. We're talking about building public trust, because we all know it's a minority of people who are abusing, but the public confidence has been lost to a great extent. I think that would just increase a loss of public confidence if individuals were given bits of power here and there to try and intervene at an individual level. This is a systemic problem, not an individual problem.

Mr Jim Wilson: I don't have a question for the witness, but I do thank you for your presentation. It's the second time Ms Haeck has raised the duty-to-intervene proposal put forward by the OMA. I would simply ask members to re-read that because it only deals with clause (3)(c); that is, with behaviour or inappropriate language, and it does not deal with the whole definition of "sexual abuse."

1950

Ms Bazilli: Okay. I didn't know that.

Mr Jim Wilson: It's actually in parallel with what the government itself is suggesting through amendments. I don't think we want, for the second time this evening, to leave the impression that it deals with the whole definition of "sexual abuse," because it doesn't.

The Chair: Thank you very much, Ms Bazilli, for coming forward. Your brief does, as you noted, have a lot more in it, and we appreciate what's there.

ONTARIO MASSAGE THERAPIST ASSOCIATION

The Chair: I call on the representative from the Ontario Massage Therapist Association, if you would be good enough to come forward.

Mr John Sanderson: My name is John Sanderson. I'm a registered message therapist and executive director of the Ontario Massage Therapist Association.

Our association commends the government for the introduction of Bill 100. It's a starting point for dealing with a very difficult issue. We have participated at every step of the process of developing legislation which will be effective, efficient and empowering without compromising the rights of the innocent.

Tonight, I want to tell you about a special concern massage therapists have concerning interprofessional reporting of touching of a sexual nature.

Let me put it in a nutshell for you: To a greater degree than any other health care profession, massage therapists touch people. Under the present constraints of Bill 100, much of what massage therapists do could be interpreted as touching of a sexual nature. As a profession, we are concerned how other health care providers will perceive and interpret our work within the guidelines and definitions set out by Bill 100. We are concerned that much of our work, our everyday treatment practices, may be interpreted as inappropriate.

I'd like to begin by telling you a story. Picture this scenario: A physician refers a woman for massage therapy for treatment of upper-back and neck pain and headaches. Part of a massage therapist's assessment of this woman would include determination of what type of work she does, what kinds of rest breaks she gets, whether she has freedom to stretch during the work period and what the shape of her work station is.

The treatment program would include a description of involved muscles, the origin of her pain, an explanation of the proposed treatment and a recommendation of prescribed stretches and exercises. In this instance, her back and neck as well as the muscles of her neck and chest would be treated.

The next time the woman returns to her physician, she may advise that treatments are progressing well, her headaches are gone and her back feels better. She may also add that the therapist has been working on her chest muscles, in particular her pectoral muscles, which begin at the sternum and extend out to the shoulder, passing directly beneath the breast.

I ask you, under Bill 100, could this constitute touching of a sexual nature? Would the physician report it as such? We believe this could happen. Let me explain how, by first giving you some background about massage therapy, before discussing the legislative provisions.

Massage has been around for a long time. Hippocrates, the father of modern medicine, recommended working with the muscles to promote health, as did other ancient physicians. Massage therapists practise holistically, which means we address and treat all parts of the body. Although Western society gives the connotation of "private" or "sensitive" to certain parts of the body, the profession of massage therapy does not promote that view that certain body parts are more or less important than others.

Our clients tell us and survivor groups tell us that healthy touch is a significant component of healing, so by ignoring or shying away from working on sensitive areas, a massage therapist would not act responsibly. Denying complete treatment and the healing benefits of touch would be contrary to a holistic approach. Yet Bill 100 could lead to a moderation of treatment to protect the therapist at the expense of the client's health.

In the example just given, the patient's neck pain would require massage of the chest muscles. In other instances, other sensitive areas could be treated, such as the buttocks during a low-back or a leg treatment, or adductor muscles for groin pulls. In our view, without any concept of exploitation in the definition of "sexual abuse," all of these treatments could constitute touching of a sexual nature.

Therefore, the Ontario Massage Therapist Association supports the concept of exploitation as a necessary component of the definition of "sexual abuse." Exploitation would indicate that a wrongful action had been knowingly committed by the health care worker within the context of the client-therapist relationship. An exploitation formula would serve to prevent cases such as the example cited above from being reported.

Massage therapists in Ontario are well-trained to communicate clearly and to respect their clients' right to privacy. We protect ourselves from misunderstandings by explaining procedures, the pros and cons of treatment, therapeutic objectives and by asking for informed consent. However, clients who are in acute pain or who are experiencing the beneficial effects of endorphin release after a treatment are not always able to concentrate fully. No amount of explaining will provide a client with an accurate memory.

Having explained how accepted massage therapy techniques could be misconstrued as inappropriate touch, I will now address my main point, the problems inherent in cross-professional reporting of this category of sexual abuse.

I acknowledge that my training does not provide for an adequate understanding of all the techniques of palpating, assessing and treating employed by chiropractors and physiotherapists. How can we expect a practitioner from a discipline where touch isn't integral, such as a dietitian or speech pathologist, to know whether certain conduct is appropriate? The filing of a report under such circumstances would have significant negative consequences. It would occupy college time and resources and might lead to an entirely unnecessary investigation. It would cause anxiety and potential harm to a practitioner as a result of what was essentially miscommunication.

Now let's consider the situation of a massage therapist who has determined that breast massage is clinically indicated. While not part of every massage treatment, there are instances in which breast massage is appropriate. Generally speaking, long-standing conditions of poor circulation and drainage can jeopardize breast health. Many common practices may contribute to circulatory and lymphatic congestion and poor breast drainage, such as restrictive clothing, adopted postures to reduce attention to breasts, surgical scarring and implants.

Prior to treatment, considerable discussion would take place with the client as to the reasons why breast massage is indicated, the benefits of the treatment, the safeguards and the privacy protections which would be in place, and a mechanism for the client to stop the treatment should she desire.

Given the high incidence of breast disease in Ontario, the massage profession cannot justify overlooking the necessity for preventive and case-specific treatment. In fact, it is important to be aware that our society's inability to consider breasts neutrally from the point of view of tissue needs has perhaps contributed substantially to what could be considered one of our most underrated health care crises. Consequently, on August 26 of this year, at a meeting of Ministry of Health staff, coalition members, college members and survivor groups, many in attendance were astonished to discover that breast massage was a therapeutically sound treatment offered by registered massage therapists.

Tonight, I briefly commented on the definition of "sexual abuse" contained in Bill 100, in particular "touching, of a sexual nature" and its inherent ambiguity as it applies to our profession, and addressed the issue of interprofessional reporting of this type of touching and the potential for misunderstanding.

Registered massage therapists have progressed beyond the media and societal stereotypes of massage and provide a viable and necessary component of health care in Ontario. We wouldn't have been considered for inclusion in the RHPA had we not proven ourselves. Now we ask that we be allowed to practise the art and science of massage therapy without the constant fear of reporting or the feeling we have to compromise the work we do at the expense of our clients' health.

Massage therapy is one of the few health professions where touch is the primary means of treatment. Therapists educate clients about the quality of touch they receive, empowering them to take control of their own health and healing process. By imparting clear and positive messages about each part of their clients' bodies and about what needs attention, massage therapists help to heal a lifetime of pain, overuse, misuse and abuse. Yet our work is often misunderstood by the media, the public and other health professions. The difference between the professions, our training and scopes of practice, make it unlikely that we will be able to adequately and justly determine if there has been an incident of touching of a sexual nature.

2000

Mrs Irene Mathyssen (Middlesex): Mr Sanderson, you seem to have presented a bit of a dilemma and I'm not sure that you've given us a resolution to this dilemma. On the one hand, you're saying there's great support for Bill 100 and the very serious problems it addresses, and then you voice concern about how it may affect massage therapists.

I'm wondering, is there a solution? I was thinking as you were speaking that surely a complete and open discussion between therapist and patient, to determine that the patient understands and feels comfortable with the treatment, would go a long way. I need your help on this. I don't know exactly what the solution is.

Mr Sanderson: I don't perceive the problem as being between the therapist and the patient or client; it's more when another professional hears about that treatment, or is told about it. Often we find our clients do not remember the explanation as to why something is indicated.

I see the answer as being education among the professions so that all the professions understand what therapy does, but I don't see that's workable in the foreseeable future. My intent of being here was more to provide insight and information that might otherwise not be provided, just because we're not well understood as a profession.

The Chair: Parliamentary assistant.

Mr Wessenger: I'd like to ask you a question. On the matter of touching of a sexual nature, I think it's quite clear: Where it's therapeutic or clinical touching, it's not of a sexual nature. However, would it assist at all, for instance, if you had it clarified, do you feel, in the legislation, when you said it did not include, say, touching of a clinical nature appropriate to the service? Would that be of any assistance?

Mr Sanderson: That would be the direction I would like to see, and further clarification, yes.

The Chair: Thank you very much for taking the time and coming before the committee this evening.

ONTARIO COLLEGE OF PHARMACISTS

The Chair: I then call on the representatives from the Ontario College of Pharmacists. Welcome to the committee.

Ms Madeline Monaghan: Hello, my name is Madeline Monaghan. I am the president of the Ontario College of Pharmacists. With me is Jim Dunsdon, who is the registrar of the college, and Christina Langlois, who is the manager of the patient relations department at the college.

I have brought copies of our submission which I hope you will receive and follow through with me. Our submission is relatively brief. We just really have a few concerns which we wanted to bring to you this evening.

The Chair: Fine. Please go ahead and we'll catch up.

Ms Monaghan: The Ontario College of Pharmacists is pleased to have the opportunity to make this submission to the standing committee on social development respecting Bill 100.

The Ontario College of Pharmacists has been the licensing and regulatory body for the pharmacists of Ontario since 1871. The college's mission is to contribute to the health and wellbeing of the public of Ontario by ensuring that pharmacists provide optimal pharmaceutical care, and its purpose is to protect the public.

There are currently some 8,140 licensed pharmacists on the college register and approximately 2,400 accredited pharmacies in Ontario.

The Ontario College of Pharmacists supports the aims of Bill 100 in principle and is committed to a goal of zero tolerance of sexual abuse within their profession. The college's comments on Bill 100 are made with a view to ensuring that this important legislation is workable and effective in achieving these goals.

Generally, the college supports the positions taken and the recommendations made by the Coalition of Colleges and Transitional Councils, which I know you have heard before this time.

We will take this opportunity to address a few matters of particular concern to our college.

Definitions: It's important that there is a clear definition of "sexual abuse" in the legislation for the purposes of successful prosecution as well as mandatory reporting. The college takes the position that behaviour or remarks of a sexual nature should not be reportable on a mandatory basis. We place a great deal of emphasis on patient counselling in the pharmacy setting. In the course of counselling patients, it is possible that a third party may overhear remarks that on the surface appear to fit the definition of "sexual abuse," which are in fact appropriate to the subject matter being discussed with the patient.

Being in a practice environment myself, I know there are situations when I talk to patients about the side-effects of their drugs, which may affect their libido or their sexual activity. We try to discuss with patients whenever we can. It's not always a private situation when you're dealing with a patient in a pharmacy. It's often very busy. Other people are listening. So a lot of the things that I could say to my patient could be thought of as sexual abuse.

There's the situation of the HIV patient whom I have to speak to about the use of condoms and other things that are very personal and difficult to relate without giving the impression that there may be some problem with the discussion. We counsel patients on how to apply creams, how to use all kinds of other devices, which we feel are really very delicate situations. We try very carefully to make sure we're talking to the patient in an environment where they feel confident and able to speak. However, sometimes someone overhearing that could misinterpret what our intention is.

It is our feeling that requiring mandatory reporting of behaviour and remarks could cause members to shy away from patient counselling, which would not be in the public's best interests. The college would recommend that the definition be amended to include "inappropriate to the service being provided" in the behaviour or remarks section.

The college supports the Ministry of Health's proposal to amend Bill 100 by removing the ability of colleges to further amend the definition of "sexual abuse" through regulations. It is the college's opinion that this would make mandatory reporting across the various professions covered by RHPA impossible, as each college could potentially have its own unique definition of "sexual abuse."

The college of pharmacists is concerned that Bill 100 does not contain a definition of "patient." Although it may be clear in other professions who is and who is not a patient, it is somewhat less clear in the community pharmacy setting. The college would recommend that a patient be defined as "any individual who receives pharmaceutical services at a pharmacy."

I often think of a situation where someone may come into a pharmacy and ask advice from a pharmacist, but the pharmacist does not know the name of the patient, doesn't know any background of their medical history, and perhaps the patient leaves the pharmacy without even purchasing anything. However, something that could be said may be interpreted. We're concerned about professional and personal relationships, which I know other colleges have mentioned as well. So we think it's very important to identify who the patient is, particularly in our situation.

We have a comment about non-party participation at hearings. The college is concerned about the effect that non-party participants will have on the disciplinary process, traditionally a matter between the college and the member. Although the college accepts the participation of non-parties in hearings where necessary, in the sole discretion of the discipline panel, it objects strenuously to any extension of intervenor status beyond that which is provided for in Bill 100.

While the college recognizes that victims of sexual abuse may require funding for counselling, we feel that it is not an appropriate role for the college to play. We feel that it would place the discipline panels in an untenable conflict-of-interest position. Colleges have never been involved in awarding money to individuals who may have been harmed by a member's actions. These are matters we feel are better left to the civil courts.

Should the college be required to provide funding, the Ontario College of Pharmacists would want to administer its own fund, rather than contributing to a fund which would pool resources.

The Ontario College of Pharmacists appreciates the opportunity of providing this submission to you on this very important piece of legislation. At this time, I'd ask if there are any questions.

2010

Mr Jim Wilson: Thank you for your presentation. It's always good to hear from the college of pharmacists, particularly after the smoking announcement last week. We probably disagree on one point of that announcement.

Two things: One is that perhaps legal counsel could provide us with whatever definition of "patient" we're to use in this act. Secondly, I want to talk about the very last point, because it was made last week on the one day of public hearings we had. That was about what does appear to be an inherent conflict of interest from beginning to the end of this process, given that it's all contained within the member's own college.

It was actually suggested by, I think, the College of Massage Therapists of Ontario, and I might have the college wrong, but representatives, their new college starting up, that because they're also in the business of awarding money at the end of the process and there's a lot of money involved in the entire process, the way this whole thing's set up, it might be a disincentive for colleges to actually seek out those who are committing sexual abuse and prosecuting them and putting them through the entire process.

Everyone in this process being professionals, I doubt that would occur, but I thought it was a fairly astounding statement. You don't say it here but you do talk about the conflict of interest. Do you have any comments on that, that there might be a built-in disincentive to actually wipe out sexual abuse?

Ms Christina Langlois: I don't think there would be a built-in disincentive at all. After all, we're here to protect the public and we would actively pursue individuals who were part of the profession who were doing something wrong.

I think the difficulty arises from the perception of conflict, not just from within our college but also from without. It's difficult for the public to look at a body that's involved in not only prosecuting but also hearing and then awarding damages, all in one setting, not to perceive some conflict.

The other difficulty we see is from the member's perspective, perhaps also seeing a conflict of interest, but frankly I don't think there would be a disincentive to eradicating abuse from the profession. I can't imagine that would cause it.

Mr Jim Wilson: Even if the college goes bankrupt as a result of this legislation, especially some of the newer, smaller colleges?

Ms Langlois: We're not in that position, fortunately, not being a newer, smaller college, but certainly having looked at the numbers and the kind of funding that is required to be kept at a minimum in these funds, I could see how a smaller college would have a great deal of difficulty funding even the basic requirement. What that would mean to them I don't know, and whether bankruptcy would be a potential, again I would not want to comment. But certainly it's a large burden that some colleges may be under.

Mr Jim Wilson: Thank you. The definition of "patient" comes up time and time again. Would counsel or the PA like to comment on that?

Mr Wessenger: Yes, I'll ask counsel to comment on that.

Ms Christine Henderson: For the purposes of Bill 100, there is no definition of "patient" within the statutory provisions that are proposed. The government's position is that each panel of the discipline committee would consider all the circumstances before it in every single case to make the determination as to whether or not, at the time the alleged sexual abuse occurred, that person was in fact a patient.

Mr Jim Wilson: Any comment from the college?

Ms Langlois: I think it provides some clarification, certainly. One of the other concerns we have as a college is from an educational standpoint. I know this is certainly an extension from Bill 100, but some of the discussion revolved around when professional relationships should cease if a personal relationship were to begin.

I think again that's an area where we're looking for a definition of "patient." If someone who comes into a retail community pharmacy and purchases something from the front shop, our pharmacist needs to know, as a professional, whether or not a personal relationship with that individual is inappropriate. Again, it's sort of away from Bill 100, but that was another aspect we were looking at. But certainly what you've just said is very clarifying for us.

Ms Haeck: You mention, on page 4, the funding mechanisms, and you are very clear in your final statement about the fact that you do not want to pool, that you want to have your own fund. One of the groups last week indicated that it actually sees a solution for a number of the colleges as being the opportunity to pool. I think in some respects it answers Mr Wilson's concern in that it is permitted, to my knowledge, for a number of the colleges to actually pool their resources and deal with the situation. I would suspect that those colleges wouldn't find themselves in the same financial straits as they might if they were on their own.

Yet again, I want to ask a question. Have you had any cases of sexual abuse within your college and do you foresee that your funding mechanisms will not be able to meet the formula that has been put forward?

Ms Langlois: We have not had any experience to date with sexual abuse cases brought forward to discipline, so unfortunately we really don't know. Obviously the average would be that the $10,000 would be required to be kept in the fund, but we have no experience to speak of, so unfortunately we can't really tell you much more than that.

Ms Haeck: No, you've answered my question. That's all I can ask. Thank you very much.

Mrs O'Neill: I'm interested to hear that you think it was helpful to hear the definition of "patient," because I didn't find that terribly helpful. We've had other presentations today that talked about "former patient." In your definition a patient would be defined as "an individual who receives pharmaceutical services at a pharmacy," so that would be the pharmacist and the patient at that moment, I presume.

Ms Langlois: Correct.

Mrs O'Neill: You suggested some people walk in -- and they're not going to do any real business with you but they may have done business with another pharmacy -- asking your opinion about that treatment or prescription or direction, whatever they were given.

Ms Langlois: That's correct. You may not know the patient's name, anything about their background at all.

Mrs O'Neill: It's only through recently having gone through a serious illness with a family member that I realized how much advice is given by pharmacists -- I had no idea -- and how much follow-up, and even sometimes follow-up going into the home with certain long-term care patients. That, I understand, is totally voluntary. But it's much more complicated, I would imagine, than many of us realize in your profession. I think there's a rather limited idea of what you do in comparison to reality.

When you're suggesting that the college take the position that "behaviour or remarks of a sexual nature should not be reportable on a mandatory basis," are you asking, as a psychiatrist did, for discretionary reporting, or would the phrase that you have at the bottom of page 3 be enough to satisfy your needs? I'm trying to put those two parts of that paragraph together.

Ms Langlois: They are somewhat confusing in the same page, I understand. I think that the paragraph at the end, which asks for a definition of sexual abuse in the words and gestures category to be expanded as "inappropriate to the service provided" would certainly go some way to allaying the concerns that we have.

Again, it might be difficult for a third party passing by to even know what was appropriate to pharmacy services, because as you've just very eloquently put it yourself, it's difficult sometimes for people to know the extent to which pharmacists are involved in patient counselling and pharmaceutical care beyond the strict dispensing function. So it's not so much only for our members, but also for other professionals who might be listening, passing by, and being under an obligation to report themselves.

Mrs O'Neill: I would imagine there are more and more demands all the time.

Ms Langlois: Definitely.

Mr O'Connor: Mr Chair, am I allowed to pursue that?

The Chair: Sorry, I've got several others. I'm very mindful and I regret that we are late, and I'm going to have to close it off with having had one from each caucus. I apologize for that, but we'd be here till midnight and I don't know that our brain cells would be working that well.

I thank you on behalf of the committee for coming before us this evening.

2020

BOARD OF RADIOLOGICAL TECHNICIANS

The Chair: If I could then ask the representatives from the Board of Radiological Technicians to come forward, welcome to the committee. If you would be good enough to introduce yourselves, then please go ahead. We have a copy. Just for members, it was distributed earlier this afternoon, so everyone should have it in their packages. It's a little school test we have to do.

Ms Janet Morgan: I'll carry on with the introductions while you're finding it. My name is Janet Morgan. I'm a radiation therapist and I'm past chair of the Board of Radiological Technicians, soon to be the College of Medical Radiation Technologists. With me today are Sharon Saberton, our registrar at the board, and Debbie Tarshis, the legal counsel for the board.

My job as a radiation therapist involves treatment of cancer by application of high doses of radiation. Bill 100 affects all medical radiation technologists, including radiation therapists, in a very direct way, because in order to treat patients, we must touch them. Some touching can involve all parts of the body, including the genitals.

The Board of Radiological Technicians represents medical radiation technologists in three specialties: radiography, radiation therapy and nuclear medicine. We're the professional body that regulates medical radiation technologists, and we are the ones who will be implementing Bill 100. We are the ones who investigate reports of sexual abuse and who discipline abusers. It's for that reason that the board wants the bill to be effective and workable. I'm sure you've heard those words often.

The Board of Radiological Technicians supports the goal of zero tolerance and supports Bill 100 in principle. However, we are concerned that the bill is not practical and will not actually achieve its goal in a number of areas. These concerns are set out in more detail in our written submission. As you're already late, we'll try and limit our presentation tonight to our three main concerns.

The first is a definition of "sexual abuse," which will be used in two ways: first, to determine sexual abuse for discipline purposes and, second, to tell practitioners what they must report. Because the failure of a practitioner to report sexual abuse can result in a $35,000 fine, the definition must be clear. Even responsible practitioners will be confused about what to report if the definition is imprecise.

The definition has three parts: sexual intercourse, touching of a sexual nature and behaviour or remarks of a sexual nature. It is the third, the behaviour or remarks of a sexual nature, which we feel is very broad. It would be difficult to draw a distinction between permissible behaviour or remarks and offensive behaviour or remarks.

We would like to recommend that behaviour or remarks of a sexual nature by the member towards the patient by replaced so that it will say, "behaviour or remarks of a sexual nature by the member which are inappropriate and demeaning towards the patient." We've added to the definition the words "inappropriate and demeaning." The word "demeaning" captures a subjective test of the effect on the patient. The word "inappropriate" provides an objective test that distinguishes behaviour or remarks appropriate to the procedure or treatment from improper remarks that ought to be reported.

Our second concern is the compensation fund. The Board of Radiological Technicians supports the principle that victims of sexual abuse should receive the counselling and therapy which they need and that arrangements should be put in place to provide funds for such counselling and therapy. The board is of the view, however, that the source of the funding should be the government, not the members of the college.

The board appreciates that in this time of economic restraint, it is difficult for the government to find new funds to make available for such a compensation scheme. None the less, it is our strongly held view that sexual abuse is a societal problem and the responsibility to respond to the needs of the victims of sexual abuse is a societal responsibility, not the responsibility of the members of the college at large, who happen to be part of the same profession as the offender.

There does not appear to be any sound reason to impose the obligation to fund a compensation program on the colleges. The only explanation would appear to be that the government lacks the funds to create such a program. It is wrong for the determination of who is to fund the compensation program to be made on this basis.

Such a policy promotes a conflict of interest. The very body which is to determine whether one of its members has committed an act of professional misconduct is to determine whether the victim should be entitled to compensation at the cost of the college. Surely such a potential conflict of interest should be avoided.

Furthermore, to have the compensation fund created and supported by a special levy or assessment on the members of each college is to polarize the profession and to pit men against women and the professional associations against the colleges.

It is our recommendation to replace the compensation fund created by Bill 100 by a victim compensation fund, which would be a government-funded and government-administered program. The board recommends that payment of all fines from disciplinary proceedings be made to such government fund.

Our third concern is the breach of confidential relationship between the patient and health professional. Bill 100 makes it possible that a report relating to sexual abuse of a particular patient could be made without the patient's consent. The only consent of a patient which is required is for the name of the patient to be included in the report.

In the board's opinion, it is a breach of the confidential relationship between the patient and a health professional that a report relating to sexual abuse of a particular patient could be made without the patient's consent. The board also feels that the patient's name and identity would eventually become known if the report proceeded to an investigation and disciplinary hearing. In the board's view, it is unacceptable to subject a patient who is the victim to examination and cross-examination in a discipline hearing against his or her wishes.

On page 8 of our submission we made three recommendations. The most important is that Bill 100 must clearly state whether an allegation of sexual abuse can proceed to a discipline hearing without the patient's consent.

The Board of Radiological Technicians has many additional specific concerns that are outlined in our written submission. For example, many unregulated therapists are not accountable to any public authority for their conduct. While we acknowledge the survivor's desire to choose their therapist, we are concerned that survivors will not be adequately protected from further sexual abuse.

The members of the Board of Radiological Technicians would like to thank you for taking this time to hear our submission.

The Chair: Thank you very much. I know there's much more in the brief than you've had time to present, but we appreciate the recommendations and other comments that you have made there. Any specific questions?

Mr O'Connor: On page 2 of your brief, you talked about the definition of sexual abuse with respect to behaviour or remarks should be amended so that -- have you seen the amendments that had made some change? Section 3, section 1 of schedule 2 of the act is to be amended as follows. It's on page 2 of the bill. Did you see that amendment?

Ms Morgan: Yes, we have seen it.

Mr O'Connor: Okay. Did you feel the amendment addressed the concern that you had, or do you feel it should be changed to maybe add something like "to the appropriate service provider" or something of that nature?

Ms Debbie Tarshis: If I could respond to that, I think the proposed amendment -- the element that is missing I think is captured in the word "inappropriate." So, yes, we are supportive of part of the definition, including the concept of inappropriate to the service provided.

I think the other comment would be that the board considered the other two words in the proposed amendment, which are "exploitative" and "seductive." The board's view is that those other two words do not capture the subjective element of the effect on a patient as well as the word "demeaning" does.

Mr O'Connor: I would think it actually goes even a little bit further to be more inclusive to the concerns that a victim might have in trying to present real concerns that they may have. By removing that, are we losing some of the intent?

2030

Ms Tarshis: We didn't feel that one was. We also felt that the use of the word "inappropriate" was also very important in the context of this definition.

The Chair: May I ask you one question with respect to the fund, because it's an issue that has come up.

The first question may be of, I don't know whether it's principle or -- I'll use that word anyway; you can disabuse me of the notion if I've used it incorrectly. Is there any point, though, in saying that if the members of the profession don't fund at least part of that, then there is a sense that somehow it's somebody else's responsibility; it's the government's or whatever?

I appreciate that your organization may be reasonably small in numbers, so I can see where there's just a practical problem in trying to determine how many cases there might be. But I just wonder, first of all on the question of principle, whether none the less there needs to be some direct involvement where in return for being a self-regulating college, that is part of the responsibility you assume as an individual who is part of that college. I just wonder if you'd address that in connection with this.

Ms Tarshis: Part of the board's recommendation, in acknowledging I think what you're expressing, is that all of the fines from disciplinary proceedings would be directed towards such a fund. So I think the board is quite aware of the need for the college to support a compensation fund. I think the difference on the matter of principle is whether or not the fund should be totally funded by the college and administered by the college.

Ms Haeck: Just as a quick point of information. I'm not sure if you were here for the previous presenters. I would assume that your college is relatively small.

Ms Morgan: It's 5,300.

Ms Haeck: The pharmacists were something like 8,140 across the province. You would have the ability to pool resources and thereby, shall we say, diminish the impact. I would suspect that you are also much like the group that was here just before you came, that in all likelihood you have never had -- I say this advisedly and I stand to be corrected -- but I would be interested to hear if in fact your board in its present incarnation has had to deal with a case of sexual abuse.

Ms Morgan: I think I'll let the registrar answer that.

Ms Sharon Saberton: One of the problems is in the act that we've been working with. In 1962, it didn't cover sexual abuse. It covered something called unprofessional conduct and hazardous use of radiation, so we were limited to those two topics. There may have been some complaints in the past that had some sexual abuse overtones, but any of the findings have been related to hazardous use of radiation.

Ms Haeck: Okay, but even sort of keeping that in mind, there is some history to this board. You probably have heard innuendo or allegations at some point.

Ms Saberton: Yes.

Ms Haeck: My own suspicion, having worked with the Regulated Health Professions Act and obviously generally looking at press clippings, is that your board has not exactly been high up in the headlines. What kind of history do you have, and just sort of general knowledge of concerns of the public around this issue?

Ms Saberton: We have had concerns expressed; we've had reports. Interestingly enough, as there's more publicity, there are more concerns. There are questions about: What are your standards of practice? Is this part of your standards of practice? There are certain cases that are under investigation right now. I would say there's more awareness of the issues around sexual abuse in the last three or four years than there ever was before.

Ms Haeck: I appreciate your comments. I think some of the survivors who are here are also very interested in your comments. Sort of looking at some of their concerns, I have to say personally I think the mandatory reporting will probably take care of a range of concerns both sides have, realizing that in all instances the name of the patient doesn't have to be used, but it would provide possibly for the board or their college in the end a means of determining what the situation is within the profession.

The Chair: Thank you very much for coming before the committee. I didn't realize just how numerous you were: 5,300.

Ms Saberton: Thank you.

ONTARIO NATUROPATHIC ASSOCIATION
DRUGLESS THERAPY -- NATUROPATHY

The Chair: If I could then call on the representative from the Drugless Therapy -- Naturopathy organization.

Dr Patricia J. Wales: Good evening.

The Chair: Please go ahead, if you'd be good enough to introduce yourselves.

Dr Wales: My name is Patricia Wales. I will be speaking first, and then Jim Spring, who is chair of the regulatory board of the naturopathic profession, will speak. Then we could take questions after that.

The Chair: Just so we're clear, you're representing the Ontario Naturopathic Association and Dr Spring is the registrar?

Dr James Spring: I'm the chair of the board of directors of Drugless Therapy -- Naturopathy.

The Chair: Fine. Thanks very much.

Dr Wales: I'll begin at the beginning again. My name is Patricia Wales. I am a practising naturopathic doctor, and I'm also the executive director of the Ontario Naturopathic Association, which represents the naturopathic doctors in Ontario. The mandate of the association is to maintain and promote the safe, effective and complete practice of naturopathic medicine within the regulated environment in Ontario.

In your brief that you've probably obtained by now, the first page is an executive summary. The text of my report is there. We're attempting to make this as brief as possible at this time of the evening.

We appreciate the opportunity to present to the committee with respect to Bill 100 and the provisions it makes to deal with the issue of sexual abuse of patients by regulated health professionals.

The devastating effects of sexual abuse have become very visible in our society. Preventing the abuse, removing the offenders and helping survivors to heal are the key points.

The naturopathic profession is adamant that the issue of sexual abuse by health professionals must be effectively dealt with now. Our profession has adopted the zero tolerance policy, and we've formulated our action plan based on that premise.

Our profession is in full agreement with the provisions of Bill 100. The association, the board of directors of Drugless Therapy -- Naturopathy and also the Canadian College of Naturopathic Medicine are jointly developing the policies, programs and procedures necessary to educate and regulate based on these standards.

All professions require due legal process to make zero tolerance an enforceable reality, and the naturopathic profession is no exception. Herein lies the problem. The naturopathic profession will not come under the provisions of the Regulated Health Professions Act or Bill 100 immediately. Our board will therefore not be legally equipped should an instance of sexual abuse by a member of our profession occur.

Our profession is committed to doing everything we can to make zero tolerance a reality. In the interim before the naturopathic profession completes the process required to move under the RHPA, we will in fact not be equipped to do so. Our commitment to public protection as a regulated profession will definitely be hampered.

For those of you who may not be familiar with the regulation of the naturopathic profession in Ontario, it may be helpful to provide you with a brief background on the profession and the effect of the RHPA and Bill 100 on the regulation of the profession.

Diagnosis, treatment and prevention of illness are the cornerstones of naturopathic medicine. The practice applies to substances and therapies to support and enhance the body's inherent healing processes. Naturopathic practice provides and brings together a real emphasis on prevention and health, which are the key words in progress in health care today, with its unique combination of clinical nutrition, botanical -- herbal -- medicine, homeopathy, manipulation, physical therapeutics, oriental medicine and acupuncture and lifestyle counselling and stress management.

To be eligible to practise in Ontario, naturopathic doctors must complete three years of pre-medical university and graduate from the dedicated four-year program in naturopathic medicine at an approved naturopathic college. The Canadian College of Naturopathic Medicine located here in Toronto is the only such institution in Canada and provides education in naturopathic medicine to students from across the country. Candidates must meet strict board entrance requirements and then pass rigorous board examinations to be eligible to practise naturopathic medicine in Ontario.

2040

The profession has been regulated in Ontario since 1925 under the Drugless Practitioners Act. However, the Health Professions Legislation Review included a recommendation in its 1986 report to discontinue regulation of the naturopathic profession.

Detailed submissions made by the profession to the Health Professions Legislation Review and to the Ministry of Health demonstrated that naturopathic medicine does indeed require regulation for public protection. The volume of letters and petitions to the ministry and the Legislature demonstrated that the public also recognized the need for regulation of the profession and demanded that it be retained.

The result was that the Minister of Health at that time, Elinor Caplan, decided to continue regulation under the Drugless Practitioners Act until new legislation for the profession was in place. After enactment of the new law, the naturopathic profession was scheduled to be the first to apply to the advisory council for admission into it. This agreement has since been honoured by Minister Gigantes and Minister Lankin.

The Ontario Naturopathic Association and the board of directors of Drugless Therapy -- Naturopathy are preparing to begin that application process as soon as the RHPA is proclaimed and the application process is in place.

So, to review, the naturopathic profession remains under the Drugless Practitioners Act as the RHPA and Bill 100 come into effect. The association and the regulatory board have kept pace with the RHPA professions as this act has become ready to be proclaimed. Our board has been drafting RHPA regulations.

A joint committee of the association, of the regulatory board, of the Canadian College of Naturopathic Medicine and a representative of the group of victim-survivors has regularly met over the last 18 months and has prepared two reports regarding the issue of sexual abuse, with recommendations on an education program for prevention and recommendations to deal with any instances of sexual abuse under the provisions of Bill 100.

To summarize, the profession is in step and prepared to act on Bill 100. However, because we are not yet part of the RHPA and do not have an act under the RHPA for the profession, our regulatory board does not have the statutory power to put the policies we've been talking about today in place.

Our profession is ready to proceed. The advisory council is ready to proceed with our application also, as soon as the RHPA is proclaimed. We therefore submit to your committee the need for the timely movement of our RHPA application through the process to enable our profession to deal adequately with the provisions of Bill 100.

Dr Spring: As Dr Wales has stated, the naturopathic profession will be the sole regulated profession left in the Drugless Practitioners Act after proclamation of the RHPA. This means that the regulation of the naturopathic profession in Ontario will be unaffected by Bill 100.

The board of directors of Drugless Therapy -- Naturopathy is committed to the principles of zero tolerance and has formulated policy, (1) for adequate investigation of sexually related complaints, (2) to reduce retraumatizing the victims during the procedures, (3) to make the procedures fair for all parties, and (4) education policy and standards-of-practice policy for prevention of sexual abuse of patients.

It is our board's commitment to work to the best of our abilities to provide these services within the confines of the Drugless Practitioners Act, but it is our opinion that it will be deficient when you compare it with the protection that's under Bill 100 and the RHPA. Therefore, we feel it is in the best interests of public protection that the Ministry of Health, the health advisory council, the Ontario Naturopathic Association and the board of directors of Drugless Therapy -- Naturopathy work together to facilitate the inclusion of the naturopathic profession in the RHPA as soon as possible after the proclamation.

Thank you for this opportunity for making this submission. Are there any questions?

The Chair: Thank you both for your joint submission. We'll begin the questioning with Ms Mathyssen.

Mrs Mathyssen: There's been some discussion, some debate, about a fund to provide for counselling of victims of sexual abuse. Some health professionals have indicated that they would like their own fund and others have indicated they would like to have a pooled fund. What would your preference be in terms of this fund?

Mr Spring: Our profession has 220 members, so the compensation aspect of Bill 100 was quite a concern for us, although in the last amendments you talked about the ability of the boards to get the money from the perpetrator by means of fines or whatever. As long as we can get the money from the perpetrator to pay back the college or our board for our expenses and for whatever therapy needs to take place, we would feel that that was adequate.

There are two things. First, you have a fine for the act if they're found guilty through disciplinary procedures. You fine them, and then of course it's up to the board to take their livelihood away from them as part of the disciplinary procedures. If you do that, then possibly there might not be any money left over to get from these people for payment of therapy. So that's a problem that we can see.

The only other thought we had on the subject was that the fines for sexual abuse proceedings go into a pool fund that would be paid directly to the victims. That would more than likely be administered by the government or some government agency, but the money would come from the fines, directly from the perpetrator, and go into a pool fund for the victims.

The Chair: What is the process? You note that for you it's important that the business of becoming part of the registered Health Disciplines Act get under way. You mentioned that this can't start until it is proclaimed. What is your understanding of what then happens, and approximately how long would your specific case be considered before hopefully being accepted? What's the kind of time frame? I realize you're sort of the guinea pigs, being the first one on the block.

Dr Wales: The time frame isn't absolute as to its ending. Its beginning can happen very soon after proclamation, which we anticipate, from what we've heard, will be December or January. The advisory council has just released the updating on the criteria that all professions will be required to meet.

The Chair: Sorry. This is the advisory council of the Health Disciplines Act?

Dr Wales: Right, the Health Professions Regulatory Advisory Council. Now we are awaiting their drafting of the actual process, which I understand was supposed to be out sometime mid-November, so we're anticipating that soon.

We have had discussion with them already as to a possible time frame, and it would appear that it may be possible to start that application process in late spring. We're prepared to begin that as soon as it's ready.

Since we don't know exactly what the process will look like and we probably won't until we're participating in it, I can't answer that question. But I can say that we have met all the criteria. We were late in the process doing that, so we're not able to be a part of the RHPA to this date.

Mr O'Connor: We've had some discussion around the therapy and the funding of the therapy. We've heard from some of the practitioners who are of course from the regulated health professions who have come to the committee and told us that the only ones who should be used for any of the therapy should be them.

Of course you're not there, but in listening to what you've said, all the different types of therapeutic processes you go through with naturopathic medicine, I would almost think that you could be a therapy of choice that people may want to go to.

It is the case that we're hearing from the regulated professions saying that they're the only ones who should be recipients.

What are your thoughts on that? Can you see any benefit to the victims of different types of therapy?

2050

Dr Wales: I'll start and maybe Jim would have a follow-up. I think we do have a lot to offer in this area, but I think it needs to be in conjunction with people who are specifically trained to handle the traumatization of the effects of sexual abuse.

My brief experience with working with the committee that was dealing with this brought to my attention that I think all professionals need to have lot more education in recognizing the devastating effects of sexual abuse, whether it be something that is brought to the attention of the health professional or not, and in treatment of general conditions or specific conditions, it would appear to me obvious that we need a team approach and I think we do have a lot to offer to that approach.

The Chair: Thank you again very much for coming before the committee at this late hour. We appreciate it.

COLLEGE OF OPTOMETRISTS OF ONTARIO

The Chair: If I could then call upon the representatives from the College of Optometrists of Ontario, if you would come forward. Welcome to the committee.

Dr Martin McDowell: I've given Mr Arnott our presentation and I think that has been distributed.

The Chair: Yes, we have copies of it. Thank you.

Dr McDowell: Great. I'd like to introduce myself. My name is Dr Martin McDowell and I'm an assistant registrar with the College of Optometrists of Ontario. I have with me tonight Dr Irving Baker who is the registrar of the College of Optometrists of Ontario. I must add that Dr Baker is the longest-serving registrar of any of the colleges in Ontario so he comes with a lot of experience and background.

The Chair: A double welcome then. He's probably been before these committees many times.

Dr Irving Baker: I'm a survivor.

Dr McDowell: The College of Optometrists of Ontario is in fact one of five colleges described under the Health Disciplines Act. We have a history. We regulate 885 practising optometrists in this province, so I suppose we are one of the smaller colleges and have particular concerns, perhaps as a result of that smallness.

Perhaps also we have a particular closeness to certain issues because of that smallness and I think we can talk to some of the issues of Bill 100 because of experience and because of our intimacy with our practitioner base. Just as a matter of note, we've provided 2,300,000 OHIP-insured diagnostic eye and vision care services last year. So although we're small in numbers, we work hard.

We're here because we are an experienced self-regulating profession and we believe that on some we've managed to carry out our mandate with some degree of alacrity, that we have dealt with all of the matters colleges deal with -- licensing, complaints, quality and discipline -- for a number of years and we believe we've done so in a reasonably fair and effective way, including those matters of professional misconduct. We do have experience with practitioners who have abused their patients.

On the matter of sexual abuse, we have come to understand abuse of patients as a significant problem in the health care system in Ontario, but it is also, and must be recognized as, a significant problem within society and we want to go on record as saying that. No health profession can claim immunity from abuse of patients. We recognize that, but we also recognize that it comes about as a result of some of the power differentials that may exist between practitioners and patients and that those power differentials exist outside of the health professions as well.

We also say that sexual abuse of patients is never acceptable and we have dealt with those matters of sexual abuse that have appeared before us in ways that we have deemed to be effective. There have been issues in all of the health professions, we believe, with accessibility to the colleges on behalf of victims. We perhaps have not done a good enough job in making our regulatory services known to the public and available to the public but, none the less, where those matters have arisen, we believe we have dealt with them.

This college was one of the members of the coalition of colleges that presented to you early last week. Fundamentally we agree with and indeed signed the document and want to reiterate our support for that document that was presented to you. We also welcome this individual opportunity to speak to you about Bill 100 itself.

We as a college want to express our sincere concerns regarding those individuals who are abused by non-health practitioners in this province or by non-regulated health practitioners. We believe this is as much an issue perhaps for this committee to be considering, and certainly we would suggest that Bill 100 does nothing to address these very real injustices in our society.

About mandatory reporting we have no particular problems. We're familiar with it. Optometrists have for many years been required to mandatorily report a variety of things under the Highway Traffic Act, under the Aeronautics Act and under the Child and Family Services Act. We're familiar with that and as a college we understand that this can be administered in an effective way and we believe mandatory reporting of sexual abuse is in fact in the interests of the public of Ontario.

We do have a major concern about funding, and I think you can understand that, having probably heard that from a number of presentations that have come before you. Perhaps we can shed a little light on it from a slightly different perspective.

At the bottom of page 4, we make a comment. At no time has it ever been recognized that colleges of the professions are capable or in a position to adjudicate civil or criminal matters or matters of compensation to an individual based on professional or practitioner malpractice, and we believe that holds true for compensation as it relates to treatment or for counselling for survivors of sexual abuse. That is not to say it is unnecessary. We believe fundamentally it is. We have seen some of the pain and discomfort that survivors encounter and we recognize that these individuals are in dire need of assistance.

At the same time, on a matter of principle, we have to recognize that we believe such a funding proposal as Bill 100 puts forward will place our college, and I believe all of the colleges, in a position of conflict of interest. It will be incredibly difficult for discipline panels comprised of both public members and professional members to look at cases in an unjaundiced way with issues of funding that potentially could place colleges such as our own in financial difficulty, to put it mildly, when we have such a small number.

We are concerned about this. We believe it's an issue for our college just from a purely administrative standpoint, but also from a matter of principle, that is, of conflict of interest.

Who should pay for funding then? Where should it come from? We believe it should be indeed from the perpetrators, those who abuse, so we would support a funding provision that would specify fines for sexual abuse that could be levied by discipline panels, but that those fines would be directed towards an independent body that would then go on to administer the funds to those individuals who so desperately require them.

On the matter of reporting of incompetence and incapacity, we understand that it is the ministry's proposal to modify Bill 100 to remove mandatory reporting of incompetence and incapacity, and we would certainly support that.

About the definition of "sexual abuse," once again you may have heard this from other presenters, but we reiterate what may have been said about the definition. The people who will be using this definition are going to be practitioners and public members. In the sense of knowing what to report, I can tell you that this would be a very confusing thing, to know what to report as a practitioner, if the definition of "sexual abuse" if subjective. We believe very strongly that the proposal put forward by the coalition of colleges is an acceptable one, is a workable one, is one that can be well understood by individual practitioners, and we would strongly support that.

2100

Secondly, we also believe that discipline panels, in looking at what sexual abuse is, must also have a very clear and unsubjective definition of sexual abuse.

The penalty for sexual abuse carries with it an extraordinarily strong impact on the individual who is charged with abuse. Let it be said that the removal of one's licence, delicensure, as required by Bill 100, is tantamount to removal, permanently, from the profession. After five years there is no right to relicensure. One will come back to a college and request licensure again, as anyone who is requesting licensure. Simply, the educational requirements will have passed this person by. So we need to know, as discipline panels, precisely what it is in order to fairly adjudicate the law. That is not an attempt to protect practitioners; it is just simply, in fairness, that people must know what they are administering, people must know what they are charged with and must know what the penalties for those behaviours are.

We strongly support the coalition's position which adds a fourth qualification, as it's stated at the bottom of page 7: "For the purposes of subsection (3), `sexual nature' does not include touching, behaviour or remarks of a clinical nature appropriate to the service provided." We believe that practitioners and panels can work with that definition.

In conclusion, then, we respect and appreciate what the minister and the Ministry of Health have done in bringing forward Bill 100 to prevent and deal with difficult and painful realities for patients. We believe that, with modifications, Bill 100 could be effective and a fair tool for utilization by this college and other colleges in protecting the public. But we believe that Bill 100, and specifically as it relates to funding, should not be constructed to place the colleges in a conflict of interest.

Thank you. Have you questions?

The Chair: Thank you very much for your submission, and particularly for the recommendations that you make in it.

Ms Haeck: A quick question: The issue of pooling was raised by a group last week, and I have to apologize to that group. I have successfully forgotten which organization it was but it did flag it for me. It is permissive, within the legislation, for a range of colleges to actually come together and pool these resources. Have you contemplated doing this to deal with some of the issues that you raise?

With 885 members, I understand that would be a concern, but I would also ask the question, have you had any cases of impropriety along these lines?

Dr McDowell: You've asked two questions, so let's talk about the pooling first of all. Our submission suggests, and I reiterate, that we would be in support of a third party, if you will, or a separate or standalone entity or body that would administer funding.

Certainly we agree that those people who perpetrate sexual abuse ought to be fined, in addition to any other requirement made of them professionally, and we believe that funding ought to be directed towards such an independent body.

In that sense we would be in support of pooling but we do not feel that it is a role or in fact is most effective or could even be done without a significant conflict of interest for colleges to administer such a fund.

Ms Haeck: There is a variety of views on that, but I understand your point.

Dr McDowell: Your second question related to, have we had to deal with matters of sexual abuse by our members, the answer to that is yes. The penalties have varied, frankly, as has, we believe, the extent of the involvements with patients. Frankly, if Bill 100 were in place today, it would alter some of the decisions that were brought forward by our discipline panels.

Ms Haeck: I would suspect that may be true for a number of them --

Dr McDowell: Yes, absolutely.

Ms Haeck: -- that have been concluded over a number of years. Thank you very much for your submission.

Mr O'Connor: Mr McDowell, on page 7 of your brief, halfway through page 7, in particular there are suggestions around (b) and (c).

The bill has an amendment before us around (c) which goes a little bit further than the (c) you have on your page. It includes beyond the word "patient" the words "that are demeaning, seductive or exploitative," which further clarify exactly what "sexual nature" can mean.

You've gone on in your proposed amendment to further clarify. Have you seen this, and what are your thoughts on that amendment to try to clarify exactly what "sexual nature" means?

Dr McDowell: First of all, we have seen that, yes, and we've considered it. We don't think it clarifies; in fact, we think it maybe muddies it a little bit. We believe those terms are more subjective than we would like to see. We think there's a diversity of opinion about what is demeaning, about what is -- I'm sorry, I forget the other two words.

Mr O'Connor: Demeaning, seductive and exploitative.

Dr McDowell: For the purposes of those individuals who sit day by day and practise and may come in contact with patients who describe to them events that they deem to be seductive or demeaning, we feel it would be a much easier yardstick for a practitioner to say, "Is what occurred appropriate to what that professional was intending to do with the patient?" -- that is, care for their health.

When we entertain some of the wording that you've suggested or that is proposed, we believe that's a very difficult thing for a practitioner, to make that kind of decision. We believe it's easier to come down to a decision about what's appropriate to the service being provided.

Mr O'Connor: The intent of the legislation is to keep in mind the victim. To each victim, what they may see or feel to be a degree of sexual assault is reality to that person, to that individual, to that victim. So it's pretty hard to gauge exactly what is the degree that a person has been assaulted, whether it is a remark to one person or an actual demeaning comment, whatever.

Would you be comfortable with the added words through the proposed amendment, including perhaps some of what you say towards "appropriate to the service provided" or "the clinical service provided," given your concerns and given that we're trying to view this as well from the victim's standpoint?

Dr McDowell: I think combining definitions would probably further muddy it, because what it might suggest is that there are times when demeaning contact is appropriate, if you can capture that inflection. So I think you have a decision perhaps to go one way or the other on this. You've asked our opinion; our opinion is that we would suggest a definition that says "appropriate to the service provided." It's an easier yardstick for our members and it's an easier yardstick -- when I say "easier," I mean a more defined and a more realistic yardstick -- we believe, for our discipline panels.

The Chair: We will give the final word to your colleague.

Dr Baker: I'm not sure it's the final word, but I think that some of our attitude could in fact be changed with respect to this (c), because in the consolidated report that we have, there is reference to the fact that clause 1(3)(c) might be handled differently than (a) and (b). That is, (c) would be handled as possible assessment for remediation, as opposed to an automatic revocation.

We've heard nothing about this, by the way. We spent a considerable amount of time playing with the words, because we have difficulty with this. But if in fact (c) is going to be viewed as a lesser offence potentially, where in fact the discipline committee can exercise some judgement as to the nature of the penalty, then some of the other wording might be acceptable and appropriate. But we have no guidance on this. We have no information, other than the fact that it's been flagged. If somebody could tell us what they were thinking about when they were referring to (3)(c), that would be helpful in giving a more considered response to the earlier question.

The Chair: Perhaps I'll ask the parliamentary assistant if he can --

Mr Wessenger: I'm going to have to ask legal counsel to perhaps clarify.

2110

Ms Christine Henderson: Thank you for your comments around the coalition definition and the clarification that you seek, that you believe would more expressly define "sexual nature" as being something that was not of a clinical nature and appropriate to the service provided. A number of other groups have also made that similar submission.

In relation to "remarks or behaviour of a sexual nature," the government has set forward its position that there will be a motion tabled that will provide more flexibility to colleges. In fact, it wouldn't be a matter that would necessarily have to go to the discipline route at all. In fact, in the appropriate case, the college could make a determination that it was an appropriate case -- 1(3)(c), sexual abuse, only words or gestures of a sexual nature -- that would be best dealt with with some assessment and a special education program, whatever was needed for that particular individual.

Because as Dr Gary Schoener indicated last fall, colleges need flexibility to have options available other than the disciplinary route, because as he said, many of these kinds of incidents are not dealt with appropriately at the discipline level. Rather, maybe there are some communication skills required, maybe an upgrading around the boundaries of the patient-practitioner relationship etc. That's what is going to be dealt with so that it wouldn't get to the disciplinary stage. The executive committee likely would have the authority to refer this on for an assessment.

Dr Baker: When will we see this?

Ms Christine Henderson: I'm waiting to get some direction on that.

Dr Baker: That would relieve a lot of our problems with that definition if there was the opportunity to use some discretion. This gets to be a very difficult matter with these things.

Perhaps just to end in a very short way, let me tell you what kind of thing comes to our attention which is very difficult to handle, because you don't want to dismiss it. You have someone call who obviously is upset, and what they really want to know is, what is the process? They feel that they have been subjected to something by a practitioner that in fact is not appropriate.

I'm learning a great deal as I go through this as to how to handle these kinds of situations, and incidentally, they are popping up more frequently because of the publicity and the fact that the thing is out of the box, if you will.

You finally get around to saying, "What in fact is troubling you?" What came out -- and this is an actual, almost verbatim report. This lady said to me that she had her eyes examined by an optometrist, he asked a history and so on, and he was going to do an ophthalmoscopic examination, which is an instrument that you look inside the eye with and you get very close. Now when he got very close, she said that he started to breathe heavily, and she assumed this to be the beginning of a come-on in this kind of situation.

You can smile and you can do whatever you like with this, but you don't know whether it's that superficial in the sense that here's a person who's triggered, for some reason or another, to something that really is innocuous or whether this is the beginning of something. So you have to do a lot of listening in order to find out what in fact happened.

The nature of the complaint was simply the heavy breathing. That's difficult, and you can handle it sort of superficially and you could almost say maybe he has asthma; I don't really know. But you can't say that. The fact is that this is where you get into this very grey area where people will say this.

A normal history, for example, particularly with contact lens practitioners who may be considering contact lens work, they may very well ask a female patient whether or not she's taking birth control pills because it can have an effect. The point is that this is a legitimate question in that clinical setting but may not necessarily be viewed that way by the lady.

So we have to have some kind of a situation which is directive at one portion to our members because we're eventually going to have to draw boundaries as to how far you can go and what you should do in certain circumstances, and we will be doing that. But that area is a touchy area.

The first two areas are not difficult at all. They either happened or they didn't and they don't require any subjective kind of evaluation. They either happened or they didn't happen and you can describe that. But as soon as you get into this question of touching or of remarks or comments, then you're into a very grey area and it's very difficult.

We get all kinds -- not all kinds of calls but we get enough calls. For example, we had a call today from somebody who said, "Is it normal for a person going to have their eyes examined to have the practitioner ask them to take off their blouse so they can listen to their heart?" As it happened, it wasn't an optometrist fortunately, but those are the kinds of question that we're now beginning to get on a fairly regular basis and those need to be handled, but surely a lot of them don't have to go to discipline. That's the point.

The Chair: Thank you very much for providing an outline of what you are meeting in the day-to-day sense. Parliamentary Assistant, is there anything else that you wanted to add to that?

Mr Wessenger: My policy assistant might want to add something.

Ms Ella Schwartz: I just wanted to add something to what Christine was saying. She was talking about the --

The Chair: Could you identify yourself?

Ms Schwartz: I'm sorry. I'm Ella Schwartz from professional relations branch. I'm the policy analyst.

Dr Baker: She's well known to us, by the way.

Ms Schwartz: I just wanted to add something. Christine was saying about the discretion for how you would deal with reports or maybe even complaints of behaviour and remarks and they wouldn't always necessarily go to discipline, but of course, even if they did go to discipline, there's a wide discretion of penalty of how to deal with them.

Dr Baker: Absolutely, except that there's an awful difference in cost in handling them one way or handling them the other.

Ms Schwartz: Yes.

Dr Baker: It's very upsetting not only to the persons who have been victimized or feel they've been victimized, but it's traumatic as far as the practitioner is concerned. Going to discipline is not an easy matter from a practitioner point of view. I think there should be at least some sensitivity in that area.

Ms Schwartz: Yes.

The Chair: Thank you once again for coming before the committee.

2120

ALEXANDER FRANKLIN

The Chair: If I could then call on Dr Alexander Franklin. Welcome to the committee, Dr Franklin. The hour is late, so please go ahead.

Dr Alexander Franklin: Mr Chairman, members of the committee, Bill 100 will have an effect on Ontario's credit rating, its public relations worldwide and the practice of the art and science of medicine.

There are advantages and disadvantages to the bill. The writing into Ontario law of a strict legal doctrine regarding sexual behaviour between doctor and patient has long been in use by the General Medical Council in the United Kingdom. The legal principle is that one may make a patient of one's mistress, the sexual partner in today's terms, but never a mistress out of a patient. In the UK, removal of licence has been the penalty.

Another advantage is the restoration of the chaperon as a requirement for the examination of a patient of both sexes. The Ontario College of Physicians and Surgeons has regularly published the need for the presence of a chaperon. Common practice over the past 20 years has been to ignore this advice. Why? Mainly because of the expense of employing a professional person in the examination room and also because the majority of patients prefer verbal and physical privacy.

Doctors will now work to the college rule or face loss of their medical livelihood if a patient complains of one of the eight proscribed acts in section 11.

Restoration of formal professional behaviour between physician and patient: In the past 20 years, there has been a tendency to use less formal behaviour, language and dress, especially the use of first names. This has led to a state of familiarity breeding contempt.

However, Bill 100, which will severely punish both visual and verbal sexual behaviour, will force physicians to return to the formal relationship of the 1950s. A doctor could be ruined with the wink of an eye. Doctors' dress has altered since the 1970s. Some male physicians change from wearing business dress or a long white coat to a relaxed style with open shirt, long hair and sandals.

Disadvantages of Bill 100: It implies a state of sexual infantilism in Ontario medical practitioners of both sexes being unable to control their normal libidinous impulses in the presence of a physically attractive patient of the same or opposite sex.

Bill 100 will make Ontario a world laughingstock, adding physicians to the Ontario judiciary and religiously sexually incontinent. It will further diminish trust in the maturity of many of its leading citizens. Character is a factor in determining the credibility of a loan applicant. Bill 100 implies that 17,000 of Ontario's more educated citizens, with at least 10 years of post-secondary education, need laws to make them behave in a professionally detached manner due, it would appear, to impoverished self-control.

Cost of chaperons: As it is not practical or even advisable to insist that a patient bring a chaperon at each visit, physicians will have to hire and hospitals provide extra staff at least at the registered nurse assistant level. I suggest that this will cost practising physicians at least $20,000 a year even at minimum wage. Who is to pay for this, government or patients?

One way of financing this extra fiscal burden would be for government to pay the wages directly, making the chaperon a contract civil servant. Chaperons could be seconded from a central pool. Patients might object at first but, with government propaganda, the presence of a chaperon would become the accepted norm.

The behavioural change of physicians into a more formal mode will go against the present trend of regarding the physician as a pal. Patients might think this represents a more authoritarian, less friendly, less caring attitude. However, a slip of the tongue or a careless glance could lead to economic disaster for the physician and the physician's family. Each word would have to be carefully weighed for any trait of sexuality.

In practical terms, Ontario medicine would return to the Victorian era. Conversations with patients would be limited to words of emotional neutrality, as described by the greatest of all Canadian physicians, Sir William Osler, as aequanimitas. We would have a style of medicine practised in societies with strict sexual taboos, such as those with fundamentalist religions.

There will also be an increased emotional distance between physicians and other health workers. Bill 100 encourages informers to report any perceived misconduct. The democratic movement to break down the master-servant relationship with, for example, communal eating areas in hospitals and the elimination of the officer-style doctors' mess will, I believe, come to an end. The health care community will go back to the military separation of officers, sergeants and other ranks.

As there is no statute of limitation for medical sexual misconduct, I suggest that physicians will use recording devices to monitor their practice. At present there is a trend among surgeons to videotape patients' consent to operation. Audio-visual records would have to be stored for the doctor's lifetime: at whose expense?

Ontario is deeply in debt. Now is the time for economic teamwork to save our relatively high standard of living and democratic attitudes. Bill 100 will turn health workers against one another as informers, and if the citizens of Ontario wish this to happen, they must be prepared for the consequences. This, Mr Chairman, concludes my presentation.

The Chair: Thank you very much for your presentation.

Mrs Mathyssen: I've listened to people who have been victims and it would seem that victimization has undermined the health profession in Ontario. I'm wondering if this bill would not restore that faith in health professionals rather than further undermine it.

Dr Franklin: Mr Chairman, I believe not.

Mrs Mathyssen: Why?

Dr Franklin: For the reasons I've just given, Mr Chair.

Mrs Mathyssen: I came from the teaching profession and the reality was that teachers had to become more sensitive to children and so we simply took steps. For example, a male teacher would not be in a room alone with a female student if that made her feel uncomfortable. Would it not simply make sense that health care providers would be sensitive and meet the needs of their patients in the same way, being alert to potential problems and simply accepting them for the good of the profession and the patient?

Dr Franklin: Mr Chairman, I believe the medical profession in Ontario is doing an excellent job at the moment and does not require Bill 100.

2130

Ms Haeck: Dr Alexander --

Dr Franklin: Excuse me, my last name is Franklin.

Ms Haeck: Oh, I'm sorry. What did I say?

The Chair: Dr Franklin's first name.

Ms Haeck: Oh, I'm sorry. I do apologize. That was by no means said intentionally.

I am somewhat concerned about your comment where you're saying the medical profession is doing extremely well around this particular issue. In fact we had an article in the paper last Friday and we had the survivor of that encounter with a particular medical practitioner presenting to us today, and I am aware of cases in my own riding where in fact doctors have encountered problems around sexual abuse.

There are a number of medical practitioners, doctors being one, psychiatrists, dentists -- those are the three that come quickly to mind -- who have encountered some serious problems with sexual abuse of patients. Personally, speaking only for myself, I think Bill 100 goes a long way to actually assisting the victims, but also I think sets a standard other countries in the world can look to for an example to address their own medical professions. I'd be interested in your comments.

Dr Franklin: Mr Chairman, the last speaker mentioned sexually abusive patients. Did she really mean that?

Ms Haeck: No, I didn't. We've had patients here who have been sexually abused. They are survivors; they are victims. I'm aware of patients who have been treated by doctors, a range of medical practitioners, in my own riding, and your comment saying that you felt the Ontario medical practitioners were handling this situation well is one that I do not necessarily see as being accurate. That's my view. I was wondering if you could comment on that.

Dr Franklin: Mr Chairman, the last speaker has opinions which I respect, but I think she brought up -- it may have been a Freudian slip -- that in fact there are sexually abusive patients, and this has not been brought up in the bill. Patients perhaps should be treated equally as their physicians.

Ms Haeck: Would you not believe that a doctor, should he or she wish to sue a patient, probably has more wherewithal to do that than any patient I've encountered so far?

Dr Franklin: As far as I'm aware, the legal aid system in the province is excellent.

Ms Haeck: We could get into a debate, but I won't go any further at this moment, Mr Chair.

The Chair: Dr Franklin, thank you for coming before the committee this evening.

Dr Franklin: Thank you very much.

SOCIETY OF INDEPENDENT COMMUNITY PHARMACISTS OF ONTARIO

The Chair: I'll then call on our last presenter of the evening, the representatives from the Society of Independent Community Pharmacists of Ontario. Gentlemen, you've been waiting patiently and we thank you for that. Please introduce yourselves and go ahead with your presentation.

Mr Jerry Taciuk: My name is Jerry Taciuk and this is Andrew Musial. I was a founding director of the society back 10 years ago and Andrew is president. I'm now on the Etobicoke board of health.

I thank you for the opportunity to come here. There is an advantage to coming late. Then everybody can leave late with us. I remember this room back in 1985 for Bills 54 and 55, and I swore that this room was bigger, but it wasn't. We spent a lot of time in here when Murray Elston was on board.

I'm sorry we don't have a presentation. Sometimes it's better not to put things in writing that you don't want to come back at you.

The Chair: That's all right. We do have Hansard.

Mr Taciuk: Yes, I know that.

We're starting with the presumption that the legislation is absolutely perfect, nothing wrong with it, where do we go from there? That's the point.

I have done work at the College of Physicians and Surgeons, the law society, the College of Pharmacists and also the Health Disciplines Board. I love playing in what they call administrative law, and the legal counsel probably know the Canadian Journal of Administrative Law and Practice.

The problem is, we're coming up with a beautiful piece of legislation, but the concern is on this enforcement of the legislation. It's a quasi-judicial tribunal that is doing the enforcement. In the case of the pharmacy, which we're both in, the members of the committee are chosen by the college and then you have lay members chosen by the government. As it says in this administrative, "The public will have confidence in the tribunal if they have confidence that they are not seen as the dumping ground of the political system." That's a problem.

But in our case there's a bigger problem. Pharmacy is a unique profession where we're in commercial as well as professional. In the case of pharmacy, you have some chains that have 300 stores across Ontario. If they have one member on the discipline committee and it just so happens that your store is a store they like in St Catharines -- I'm giving an assumption -- it makes it very difficult because it's not totally independent like it would be in medicine, dentistry or law. They don't own 150 dental offices. So it's a very serious problem.

With respect to health legislation, the question must be answered, is the tribunal operating under administrative law? There are no rules of evidence there. That brings a big problem if there are no rules of evidence.

For example, I have here from the College of Physicians and Surgeons a review to the Health Disciplines Board. I have filed something there and I am number 300 on the list for a hearing. Do you know how long that's going to take? A year. Not only; they breached rules of evidence. You're dealing with the complaint of the doctor against me, against what I said about him. They've got no jurisdiction. Now I've got to wait a year to find this out.

This is a serious matter because the members of the committee do not have the knowledge, and now we're talking sexual abuse. I shudder in pharmacy. If you look at the situation and you say, okay, they don't adhere to the rules of evidence; they don't have to -- the selective disclosure of documents, I asked for disclosure and they said the Health Disciplines Board will review what they will let you have. Amazing. I can go to the courts and get it all. I can't get it there.

Third, these are political appointments. Fourth, they're not trained in the law. The irony is that I was at two hearings at the Health Disciplines Board where they have a lawyer who is there acting as a consultant to the board. Actually, he is the bus driver, because all the people in the room don't have any experience in law, so he drives the bus. The irony is that it's already been written up in the Toronto Star on two cases. One of them was mine that we didn't bring forward back a year ago. I wasn't even involved so I just love -- what do you call that? Act as an agent for people.

One other point: There's no oath of office. Can you imagine somebody handling a hearing for you being charged with sexual abuse and the guy didn't even take an oath of office? That's scary.

Are they competent? This is only a small eye opener. I've got lots in this textbook on administrative law. How would you feel, as a member here, being charged with sexual abuse with all of these factors -- I can give your more -- and know that you're going to have to go in front of this committee? Would you rather go there or in front of the judiciary? Mr Musial will carry that part for me.

Mr Andrew Musial: We have an offence or any breach of the law, whether federal or provincial, to which a penal sanction is attached. The federal Parliament can create the laws under its criminal power in section 91.27 of the Constitution and the ancillary enforcement measures, which is the "peace, order and good government" clause.

The provinces also have the ability to create certain offences under provincial legislation, that is, "Property and civil rights" in section 92.13. Private law of property and contracts, torts and many others and their derivatives are covered in this section. Then there's the second section where the province can bring forward legislation, "Generally all matters of a merely local or private nature in the province," which is section 92.16.

Presently, sexual assault, of which I believe this bill is a mirror image, is covered under the Criminal Code. Our position is that I don't think the province has the statutory authority to bring forward the bill as it is. The bill may be effective after somebody has been convicted of sexual assault but not before. I think what the legislation wants is really to remove a practitioner who is guilty of a sexual offence, and we agree with that. We shouldn't have people practising who don't have the moral standards to practise. But we do find a problem here where we have now parallel legislation to that in the Criminal Code.

2140

Whether that issue has been looked at by the province -- because I dealt with another one, and that was the licensing of boats. At that time I went through Minister Ziemba, who's in my constituency. We addressed the issue. Howard Hampton did, after months of searching the precedents, come back and say, "No, we cannot have boating legislation because the Constitution doesn't allow it."

What I'm saying is, does the Constitution allow the Legislature of this province to bring in sexual abuse legislation, which is of a criminal nature, rather than dealing with an amendment to the federal Criminal Code or perhaps an amendment which ought to be brought in to take care of a practitioner who is convicted of a sexual abuse case?

The Chair: Thank you. Perhaps we can try to just deal with a few of the questions you've raised in the course of your presentation. I ask the parliamentary assistant or legal counsel to respond.

Mr Wessenger: I think it should be clear that the colleges would be subject to the Statutory Powers Procedure Act, as are all administrative tribunals, so they would be no different, for instance, with respect to the tribunal under the RHPA. For instance, it will say the municipal board or the Labour Relations Board. I hope I'm correct in that regard.

Interjection: Many tribunals.

Mr Musial: They don't deal with criminal matters; they deal with matters of a summary conviction nature. It's not a criminal offence. We're dealing with a criminal offence, which is sexual abuse of a patient, which is sexual assault. How do you differentiate that?

Mr Wessenger: I would disagree with you. These are not criminal matters.

Mr Musial: Sexual abuse is not a criminal matter?

Mr Wessenger: They're matters determining the fitness to practise a profession.

Mr Musial: No, that's not true. The Criminal Code specifically addresses criminal assault. If you look at your sections in the act, they deal specifically with the sexual nature of the crime. How does the province take jurisdiction in a criminal -- that's what we want answered.

Mr Taciuk: I have the act right here. Under section 271(1), "Every one who commits a sexual assault is guilty of (a) an indictable offence and is liable to imprisonment for a term not exceeding ten years or (b) an offence punishable on summary conviction."

You brought up a very important point that with respect to using the administrative tribunals for a sexual matter which is life-threatening to professionals -- they lose their licence -- you look at the appeal mechanism. In the health professions it's the Health Disciplines Board: 300 cases in line before when I've tried to put an appeal on a complaint.

They said, "Oh, the reason is, once we get the new legislation, then everything's going to move smoothly." There are two reasons you've got 300 people backlogged: The public is fed up. They're not getting proper treatment, and the colleges are not handling it properly so they appeal to the board.

Once the new legislation comes through, it's not going to change things. It concerns me that you're having a sexual abuse thing and you have no appeal mechanism. Once you hit the Health Disciplines Board, then you go for -- what review is that?

Mr Musial: We'd have a judicial review on a point of law --

Mr Taciuk: -- a judicial review on procedure, on points of law only.

Mr Musial: -- not on whether you're innocent or guilty. So there's no mechanism, and the regulatory mechanism -- if I may add, there's another problem and I've noticed it over the years, that more and more of the, I would say, onus of the legislation is going towards regulations.

I believe Christel is the Chair of the standing committee on regulations.

Ms Haeck: Regulations and private bills.

Mr Musial: That's right. I had a conversation with you prior to that in looking at an appeal of a regulation. There is none. The only way you can appeal any regulation -- there's no input, no democratic way of dealing with it in committees and so forth. The only way you can go is through a criminal court. I think what this Legislature is doing is giving the powers of the members of the Legislature to the bureaucracy, and that's becoming very scary.

As you're leaving everything to the regulatory mechanism, who does the accountability on whether or not these things are properly done and whether the public has any input into a regulation? These are problems. I think it's nice to hand it over to the bureaucracy to do because it's an easy way, but in effect it's not a democratic way.

The Chair: Thank you. I think you've raised some interesting issues that I suppose one could say we'll sleep on and try to deal with as we continue with the bill. Thank you again for coming before the committee.

Mr Taciuk: We probably will put a brief in but we've got so many things right now.

Mr Musial: We have the tobacco issue, we met with the Minister of Health; we had other issues. I'm sorry, but we're a small organization and we don't have the resources to do it.

The Chair: That's quite all right. We appreciate your coming before us.

With that, members of the committee, we stand adjourned until 3:30 tomorrow.

The committee adjourned at 2146.