What I am posting below is a copy and paste transcript of what currently appears at the following website: http://www.ontla.on.ca/web/committee-proceedings/committee_transcripts_details.do?locale=en&BillID=&ParlCommID=512&Date=1993-11-30&Business=Bill+100%2C+Regulated+Health+Professions+Amendment+Act%2C+1993&DocumentID=18477#P108_5717
The presentation I want to highlight is from the Toronto Psychoanalytic Society in the year of 1993 concerning a bill 100, Regulated Health Professions Act. I am posting it here only so that it might be easier for me to access it in the future.
Monday 29 November 1993
Regulated Health Professions Amendment Act, 1993, Bill 100, Mrs Grier / Loi de 1993 modifiant la Loi sur les professions de la santé réglementées, projet de loi 100, Mme Grier
Toronto Psychoanalytic Society
Dr Paul Finnegan, president
Dr Ray Freebury, member; director, Toronto Institute of Psychoanalysis
Dr Patricia White, member
Royal College of Dental Surgeons of Ontario
Dr Richard Beyers, president
Dr Minna Stein, deputy registrar
Solette Gelberg, public representative, college council
Ontario Board of Examiners in Psychology
Dr Catherine Yarrow, acting registrar
David Lumsden, public representative and co-chair, client relations committee
Registered Nurses’ Association of Ontario
Dr Ruth Gallop, member
Ontario Hospital Association
Peter Harris, chair of the board
Patients’ Rights Association
Peggy Pasternak, member
Mary Margaret Steckle, executive director
Metro Action Committee on Violence Against Women
Susan McCrae Vander Voet, executive director
Sylvia de Persis
Ontario Dental Hygienists’ Association
Ontario Association of Medical Radiation Technologists
Robin Hesler, executive director
National Association of Women and the Law
Nicole Tellier, member
Ontario Association of Professional Social Workers
Barbara Chisholm, spokesperson
Women’s Health in Women’s Hands
Vuyisuva Keyi, health promotion coordinator
Respiratory Therapy Society of Ontario
Sean Kenny, president-elect
John Bell, past president
Transitional Council for the College of Dental Hygienists of Ontario
Linda Strevens, registrar
Jane Rogers, chair, working group on Bill 100
Survivors of Medical Abuse
Josie MacPherson, facilitator
Sharon Danley, cofacilitator
Velma Demerson, member
Out of Patients Advocacy Network
Susan Vella, legal counsel
STANDING COMMITTEE ON SOCIAL DEVELOPMENT
*Chair / Président: Beer, Charles (York North/-Nord L)
*Acting Chair / Présidente suppléante: O’Neill, Yvonne (Ottawa-Rideau 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)
*Owens, Stephen (Scarborough Centre ND)
*Rizzo, Tony (Oakwood ND)
Wilson, Jim (Simcoe West/-Ouest PC)
*In attendance / présents
Substitutions present / Membres remplaçants présents:
Akande, Zanana L. (St Andrew-St Patrick ND) for Mr O’Connor
Haeck, Christel (St Catharines-Brock ND) for Ms Carter
Haslam, Karen (Perth ND) for Mr Hope
Mathyssen, Irene (Middlesex ND) for Mr O’Connor
Sullivan, Barbara (Halton Centre L) for Mr McGuinty
Wessenger, Paul (Simcoe Centre ND) for Mr Martin
White, Drummond (Durham Centre ND) for Mr Rizzo
Also taking part / Autres participants et participantes:
Jackson, Cameron (Burlington South/-Sud PC)
Also taking part / Autres participants et participantes:
Ministry of Health:
Henderson, Christine, legal counsel
Wessenger, Paul, parliamentary assistant to the minister
Clerk / Greffier: Arnott, Doug
Staff / Personnel:
GARDNER, DR BOB, ASSISTANT DIRECTOR, LEGISLATIVE RESEARCH SERVICE
The committee met at 1533 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 Vice-Chair (Mr Ron Eddy): Members, ladies and gentlemen, welcome to the standing committee on social development, presently holding hearings on Bill 100, An Act to amend the Regulated Health Professions Act, 1991.
TORONTO PSYCHOANALYTIC SOCIETY
The Vice-Chair: The first delegation is the Toronto Psychoanalytic Society. Would the representatives please come forward and sit at the mikes, introduce yourselves, and proceed with your presentation. We have approximately 15 minutes for a presentation, followed by questions if there’s time. Thank you. Go ahead.
Dr Paul Finnegan: Mr Chairman and members of the standing committee on social development, my name is Paul Finnegan and I’m the president of the Toronto Psychoanalytic Society. This is the second time within a month that I’ve had the privilege to appear before you and to express the concerns of the Toronto Psychoanalytic Society and other Ontario branches of the Canadian Psychoanalytic Society. Appearing with me today are Dr Ray Freebury, the director of the Toronto Institute of Psychoanalysis, and Dr Patricia White, a member of both the society and the institute.
As you may recall from our previous presentation, there are over 150 psychoanalysts currently practising in Ontario and 30 candidates in training. Of this number, approximately 90% are physicians qualified in psychiatry, while others are psychoanalysts with PhDs in psychology and other related fields.
When practised under highly specialized conditions, psychoanalysis has proven effective in the treatment of mental disorders with resultant reduction in psychiatric hospitalization and in the utilization of other medical services. As this committee has heard from patients themselves, psychoanalytic treatments have alleviated personal psychological suffering and have enabled patients to return to productive lives as parents, employees and taxpayers in this province.
I’ll ask Dr Freebury to continue with our presentation.
Dr Ray Freebury: I don’t know if you are sure of what the Toronto institute means compared to the Toronto society. For your information, the Toronto institute is really the training arm of the Toronto society, and I really represent the society here today and not the institute.
The conditions previously mentioned under which psychoanalysis is properly practised provide the cornerstones of effective treatment. Psychoanalysis is practised under conditions of absolute privacy and confidentiality. Any breach of this confidentiality by a psychoanalyst is not only a breach in therapeutic technique but also a breach of the ethical principles which govern the practice of psychoanalysis.
Under these conditions of absolute confidentiality, psychoanalytic treatment requires that the patient, what we call “free associate,” which means they’re expected to say anything that comes to their mind, which includes all of their memories, thoughts, feelings, ideas, fantasies which may come to mind during the treatment session. The patient must be free to reveal the most private and intimate details of his or her personal life without exception.
The psychoanalyst fosters the development of trust by providing a receptive and non-judgemental therapeutic relationship and by not acting to intervene in the personal life of his or her patient. The development of trust in the psychoanalytic relationship is a complex and fragile process at times. It sometimes takes a long period of psychoanalytic treatment to establish the conditions of trust which will enable the patient to reveal themself to the psychoanalyst in ways which permit the resolution of their psychological difficulties.
As psychoanalysts, we do have fairly extensive experience of the treatment of patients who have been sexually abused. A recent survey, which will soon be published in the American Journal of Psychiatry and undertaken by a member of the Toronto Psychoanalytic Society, surveyed all of the psychoanalysts in Ontario and his figures reveal that over a third of all of the patients who are currently in treatment with psychoanalysts in Ontario have either been sexually abused or physically assaulted at some time during their childhood, adolescence or adult life.
As professionals dedicated to the care of the mentally ill and to the care of the sexually abused, we strongly support all the initiatives designed to eradicate the sexual abuse of vulnerable patients. We strongly support Bill 100 and the principle of mandatory reporting for the two categories of sexual abuse involving sexual contact. We do concur with the view of the Ad Hoc Coalition of Regulated Healthcare Associations that problems exist with the proposed mechanism for the mandatory reporting of remarks and behaviours of a sexual nature and that more work needs to be done in this area.
In addition, we are deeply concerned about the effects of certain provisions of Bill 100 on some of our patients and on the treatments which we provide. In particular, we’re concerned with the unconditional nature of mandatory reporting which runs counter to the very cornerstones of effective psychoanalytic treatment, namely:
First, the assurance of absolute confidentiality; secondly, the development of trust; thirdly, the fundamental principle for psychoanalysis of free association; fourthly, the provision of a non-judgemental therapeutic relationship without intervention in the personal life of the patient.
Clearly, there are some circumstances in which the rule of unconditional mandatory reporting will harm patients and seriously undermine their psychoanalytic treatments. The people about whom we speak are not able to come here before you as some of the more courageous victims of abuse have been able to, nor can we divulge their confidences to you. So what I’m about to tell you are hypothetical case examples which are extrapolated from actual clinical situations and experience.
A female patient reveals, during the course of psychoanalysis, that she previously had an affair with her dentist. At the outset of the affair, the professional relationship was terminated. Subsequently, the affair was broken off by mutual agreement and both individuals are now happily married and remain friends.
The psychoanalyst informs the patient that the circumstances of the affair must be reported to the college of dentistry. Over the ensuing weeks, the patient passes through phases of shock, disbelief, rage, bargaining and finally guilty and despairing depression. She fears that by revealing the story of the affair, she will have brought unintended harm upon her former dentist. She refuses permission for a report to be made. Despite her continuing need for psychoanalysis, she threatens to break off treatment if her psychoanalyst reports against her will.
Another example concerns the case of a woman who has had a 10-year history of psychiatric treatment and hospitalization for anxiety, depression and attempted suicide. As a consequence of the trust built up during psychoanalysis, she’s able to reveal to a therapist that she had once become sexually involved with her family physician. She feels confusion and guilt about this relationship and is desperately afraid that her husband will find out about what happened and will leave her. It is further discovered that the patient had been sexually abused by her father during childhood and adolescence and that the patient had buried all memory of these events from her conscious mind.
The patient comes to understand that her psychoanalyst is required by law to report the family doctor with whom she had become sexually involved. The patient reasons that when this is done, her husband and family will find out what has happened, and further, the fact that she had been sexually abused by her father will be similarly revealed.
The reporting of sexual abuse has become equated in the patient’s mind with the public revelation of childhood abuse which she has long sought to conceal from others and even for many years from herself. She no more trusts in the provisions for anonymous reporting than she could trust the intentions of a psychoanalyst who would report against her will.
The emotional stress of the threat of revelation becomes more than she can bear. An emotional breakdown ensues and she suffers once again from the symptoms of anxiety, depression and thoughts of suicide for which she had initially sought psychoanalytic treatment. The patient has to be hospitalized and the benefits of her previous treatment are lost. Her analyst is now perceived to have joined the ranks of her abusers before she has had the opportunity to understand how the denial of past abuses is continuing to contribute to her persistent and disabling psychiatric, emotional symptoms.
The effect of unconditional mandatory reporting in such circumstances is to further traumatize the patient and to create a cycle of cumulative trauma from which the patient perceives there is no escape. The psychoanalyst is forced to abandon the basic cornerstones of psychoanalytic treatment and to enact a role with which the abused patient is already too familiar, that of yet another authority figure who will betray her trust.
You can see that in all likelihood such an event is going to terminate her psychoanalytic relationship, and the physician who feels obliged to report against the patient’s will, because of the threat to his livelihood and so on, is probably going to have to terminate the treatment and try to make arrangements for the patient to begin all over again with someone else.
The ethical conflict into which the psychoanalyst is forced, then, is that of determining what in his or her clinical judgement is clearly in the patient’s best interests, that is, not reporting in order to maintain the integrity of the conditions known to be necessary for effective treatment or weighing this against the legislated obligation to report and the dangers this will impose then upon the treatment process.
Many patients requiring psychoanalytic treatment have had their basic trust repeatedly betrayed in the past, with terribly damaging consequences. To legislate that their trust be betrayed yet again by those to whom they have come for help is to do grave harm to such patients, to seriously damage their treatment and to compromise their hopes for recovery.
At this point, I’ll hand back to Dr Finnegan, who would like to make a more formal proposal.
Dr Finnegan: I just want to remind the committee that we support Bill 100 and we support mandatory reporting, but we feel here that Bill 100 must be strengthened in its intent to protect the public by being modified to reflect the needs of a small group of particularly vulnerable psychoanalytic patients. The modification required is that psychoanalysts must be allowed, under clearly specified conditions, an exception to mandatory reporting as it’s defined in the bill.
With the assistance of legal counsel, we’ll now put before you a proposal for the strengthening of the provisions of Bill 100 which we believe will be to the benefit of patients under the special circumstances of psychoanalysis.
We propose the following exception to mandatory reporting which would be either an amendment to subsection 85.1(4) or, alternatively, included in the regulations under subsection 85.1(4):
“Whereas psychoanalysts — to be defined as members in good standing of one of the Ontario branches of the Canadian Psychoanalytic Society — provide treatments, psychoanalysis and psychotherapy which, by their very nature, require that a patient be absolutely truthful about and fully disclose what are ordinarily considered to be the most intimate and private details of his or her personal life; and
“Whereas psychoanalysis and psychotherapy are treatments which, by their nature, require standards of absolute therapeutic confidentiality in order to be effective;
“Psychoanalysts, while engaged in the provision of psychoanalysis and psychotherapy, are permitted an exception to the mandatory reporting of sexual abuse of a patient by a member of the same or a different college in circumstances in which:
“(1) The psychoanalyst finds out about the abuse during the course of treatment of the patient;
“(2) The patient refuses permission to report; and
“(3) The psychoanalyst determines that in his or her clinical judgement reporting will risk serious harm to the patient or will substantially interfere with the patient’s psychotherapeutic treatment.”
I want to just go back and note that at the end of point (2), there’s an “and” that should appear in your copy, and I take responsibility for the oversight of that being left out. The implication of that is that conditions (1), (2) and (3) would all have to apply.
Again, we support mandatory reporting, but there is a need for exceptions in the circumstances that we’ve indicated. A concern might arise that exceptions will be used in some way to shield or protect abusers. This must not happen.
To ensure that it does not happen, we believe that psychoanalysts must be professionally accountable in circumstances in which an exemption is claimed. This could be achieved by an amendment to subsection 51(1) of schedule 2 of the code to add the following clause, and by “code” here I’m referring to the health professions procedural code, which is part of a schedule of RHPA, schedule 2, which sets out the procedures in committees, complaints, discipline and so on, common to all regulated health professions. This would be the proposed amendment to subsection 51(1), and would read:
“(b.2) The member has failed to maintain the standard of practice of the profession in exercising his or her decision to claim an exception to the filing of a report of sexual abuse pursuant to subsection 85.1(1).”
In other words, we’re proposing here that if one were to use the exception to shield someone or to use it inappropriately, this would be considered an act of professional misconduct and be disciplinable.
We’re now prepared to answer questions if you have them.
The Vice-Chair: Ms Haslam, did you have a question? I thought you’d indicated.
Mrs Karen Haslam (Perth): Yes, I did have one if you’re going to give me the time to ask.
The Vice-Chair: It is very short, the time.
Mrs Haslam: I was interested that you had so many cases. I had a case also and maybe you’d like to comment on this particular case.
There are five instances of fondling re Dr X. The sixth case is reported with the patient’s name. Evidence is of a similar fact. Six women over three years have said they were fondled after a routine exam by Dr X, and that preceding this he made degrading comments about their body. The eventual complainant is validated and investigation of the case is expedited, thereby saving the college time and money and sparing the complainant needless revictimization. Giving you a case, could you comment on that one?
Dr Patricia White: It seems to me that’s a very important case that would be covered by mandatory reporting if such a case came to the awareness of a psychoanalyst or psychotherapist. It’s obviously a case of repeated abusive behaviour on the part of a particular doctor and needs to be stopped. That’s what mandatory reporting is about, to stop situations where there is repeated abusive behaviour on the part of a therapist or doctor.
Mrs Haslam: That’s my point. Without the mandatory reporting, whether there’s a name attached or not, the pattern does not emerge.
Dr Patricia White: As we’ve tried to indicate, we are in favour of mandatory reporting except in certain exceptions.
Mr Cameron Jackson (Burlington South): Ms Haslam has asked you a specific question about a hypothetical case but involving a physical examination. It’s highly unlikely that in the course of your work you’re doing physical examinations.
Mrs Haslam: No, and that was never the intention.
Mr Jackson: I understand that. I just wanted that for clarification.
Dr Finnegan: Oh, certainly not, yes.
Mr Jackson: That’s what I understand. So I’ll ask you a question if I can in terms of the psychological implications of the concept of reporting.
It’s my understanding that currently the practice in Ontario is that although we prescribe zero tolerance and we recommend reporting, if a woman who has been raped or sexually assaulted or physically abused enters a shelter or a rape crisis centre, it’s not automatically required that they report to the police, and there are some time-honoured reasons for that. I don’t want to get into all of that, the discrimination in our justice system, the revictimization and processes and so on, but there’s an acknowledgement there of a woman’s right at that point to make certain determinations that are empowering. I want to try to bring that into the scope of your practice, because we may be producing a form of contradiction here if in fact we compel a patient along a disciplinary route which can actually reverse and harm the patient. This flies in the face of your responsibilities as healers, seeking psychological strength and support.
I want you to expand on your recommendation, because just at the very close of your presentation, you shared that with us, and I was trying to hear very clearly. I don’t have the actual wording of your recommendation in front of me, not that I need it at this moment, but perhaps you could just clarify how we might treat this case differently as it relates to your work, because I think it’s rather unique with respect to the whole scope of medical services. I think the bill should clearly make sure it has some recognition of that.
I didn’t want to demean your physical examination example, but I really want to zero in on the concept of the psychological consequences of setting in motion matters that are generated by the patient through the therapy process if then they lose control over them, which is not very helpful.
Dr Freebury: What I’d like to stress is that, as we’ve stressed in our presentation, there are certain people who will undoubtedly be harmed by the consequences of mandatory reporting. I think as psychoanalysts, if we had a concern that there was a case of multiple abuse that would be hindered by the patient’s refusing to report, we would likely arrange for our patient to be transferred to another therapist and we would report. It wouldn’t be the most satisfactory condition for the patient, but we do have to recognize that the public interest has to be protected also.
Dr Finnegan: May I speak briefly to that? I’d just like to indicate that in what we’re proposing, we’re proposing that all three conditions be met. So if the patient simply says, “I refuse you permission to report,” that doesn’t stop the reporting. We would go ahead and report if we felt that was the proper thing to do to protect the public. The implication for psychoanalytic treatment of reporting against the will of the patient would be that, as Dr Freebury put it, we would be required then to transfer that patient’s care to some other psychoanalyst. It would compromise our treatment entirely.
Mr Jackson: The trust would be broken.
Dr Finnegan: That’s right.
The Vice-Chair: Mr Wessenger has a question for you.
Mr Paul Wessenger (Simcoe Centre): Are you aware that under the bill, for instance, if the name of the abuser is not known, no report can go forward? If the abuser is not known, there’s no requirement that a report be filed. You’re aware of that?
Dr Finnegan: Yes, I’m aware of that. But if I can just follow up on that, I read in Robert Sheppard’s column in the Globe and Mail a little while back that the idea was being floated around the ministry that physicians could avoid this problem just by telling their patients, “Don’t tell me who it was.” How could we do that? We’re psychoanalysts. We say to our patients, “Tell us everything.” We couldn’t possibly buy the situation where they say, “Well, here’s something I won’t tell you.”
Dr Freebury: It would hardly be conducive to psychoanalysis to be duplicitous and to promote duplicity with one’s patient.
The Vice-Chair: Thank you very much for your presentation.
ROYAL COLLEGE OF DENTAL SURGEONS OF ONTARIO
The Vice-Chair: The next presentation is by the representatives of the Royal College of Dental Surgeons of Ontario. Would the representatives please come forward and be seated and introduce yourselves. Proceed with your presentation after introduction, if you would.
Dr Richard Beyers: Good afternoon, ladies and gentlemen. My name is Dr Richard Beyers and I am president of the Royal College of Dental Surgeons of Ontario. The college is a regulatory body of the dental profession in this province. We are charged with the responsibility of governing dentistry in the public interest.
With my today are Dr Minna Stein, our deputy registrar, and Mrs Solette Gelberg, one of the five public representatives appointed to our council. Mrs Gelberg will present on behalf of the college an overview of the written submission which we have provided to you. We hope that our input will assist you in developing effective legislation to eliminate the sexual abuse of patients.
Mrs Solette Gelberg: You’ve been provided with the college’s written submission and I would like to highlight some of the points that have been raised.
The Royal College of Dental Surgeons not only views the matter of sexual impropriety and sexual abuse with utmost seriousness; it will not tolerate any actions of this kind on the part of the dentists in Ontario. However, while the college welcomes further positive legislative change, it must oppose amendments which will lessen its ability to regulate dentists effectively.
The college is concerned that some of the proposed provisions may unintentionally make it more difficult for colleges to prosecute members successfully. If the charge of sexual abuse covers everything from a remark to sexual intercourse, it may sometimes be very difficult for discipline committees to find professionals guilty as charged. Indeed, it may be that discipline committees will find themselves applying an exceedingly high standard of proof, possibly leading to undeserved acquittals. This surely is not in anyone’s interest. As in the courts, discipline committees dealing with sexual impropriety or sexual abuse often find there are no witnesses and no real evidentiary basis to support a finding of guilt. In the end, they must rely on the credibility of witnesses and reports of surrounding events to determine who is telling the truth.
Two changes are required. First, in our view, it would still be preferable and in the public interest for two categories of offences to be established: sexual impropriety for remarks and gestures, and sexual abuse where any physical contact is involved.
Second, there should be a range of fines and penalties for both categories, depending on all of the circumstances involved, with some discretion left to the discipline committee regarding the length of waiting time before application for reinstatement. It’s difficult to understand how anybody can contemplate the same charge for an inappropriate remark, hugging and rape.
The college encourages the ministry to follow through on its consideration and allow the college to refer members charged with behaviour or remarks of a sexual nature to assessment and possible remediation rather than to discipline.
While the college agrees with mandatory revocation for sexual abuse with physical contact, a five-year removal from practice for a dentist will in most cases effectively end his or her professional career. It is impossible to practise dentistry or to stay current with techniques without performing the controlled acts of the profession.
However, there are other professions where the person may continue to work in their field even though registration has been revoked. The proposed amendment is an unequal application of penalty which does not acknowledge this diversity among the professions.
We recommend that the waiting period before a dentist can apply for reinstatement be one year. Reinstatement would be far from automatic, because the member would have to satisfy stringent requirements for reinstatement as set out in the regulations. Eliminating judicial appeals of penalty because a specified revocation is mandatory also causes concern. The fairness engendered in the principles of superior court review of judicial and quasi-judicial decisions should not be discarded.
Regarding procedures at discipline hearings, the college strongly supports the proposed amendments which would require prior disclosure by both parties of the identity of experts who will testify, along with advance copies of the expert’s report or, if there is no report, a summary of the expert’s evidence.
The college believes that a discipline hearing has only two parties, the college and the accused member. The only other people who should be allowed to participate in a hearing are those with information relating to matters affecting personal rights, such as competency, and victims, who should be allowed to present impact statements at the penalty stage of a hearing.
The college supports awarding costs against a member found guilty of professional misconduct and recommends extending this provision to reinstatement proceedings. Since the average cost for a day of discipline hearings at our college is approximately $10,000, this will be an added inducement for members and their lawyers to cooperate with the college so that investigations and discipline proceedings can be more expeditious and less costly.
The college is concerned about the provision requiring funding for counselling. If a finding of professional misconduct against the member is a prerequisite for entitlement to counselling, this can be very unfair to the patient. On the other hand, how can you reconcile providing an entitlement to $10,000 of treatment where a decision of a discipline committee is overturned on appeal? Do you try to get the money back from the patient? Would it not be preferable to make treatment more readily available to all through conventional avenues like publicly funded community mental health services? Colleges are inappropriate bodies to administer counselling funds.
The college supports mandatory reporting of sexual abuse involving physical contact. It opposes mandatory reporting of remarks and non-physical behaviour, despite the government proposal to qualify remarks and behaviour to that which is demeaning, seductive or exploitive. There is just too much room for subjective interpretations to be incorrect. In any case, the reality is that there is little the college can do with a third-party report of this type of misconduct if the victim is unwilling to press the matter. The better approach would be to require members to ensure that victims are informed of their own rights to complain to the college.
Regarding mandatory reporting by treating professionals, the college entreats the ministry to reconsider providing some exemptions in this area. If a mandatory reporting provision continues to apply to treating professionals under all circumstances, we feel this will deter dentists who need help from accessing the treatment they need and a valuable means to prevent sexual abuse will be lost.
Section 4 of the bill proposes to prevent a registrar from referring a dentist to the registration committee on reasonable grounds to doubt the applicant’s capacity. Experience has shown that applicants may meet all the paper criteria for registration but there may still exist good and valid concerns about their capacity or good character and the effect this could have on their dealings with patients. To remove this protection from the public makes no sense to the college. A better amendment would provide that a registrar may refer an applicant to the registration committee when the registrar has doubts, on reasonable grounds, about the sufficiency of the applicant’s education, training, experience or capacity or about the applicant’s character.
While we’ve supported some provisions of Bill 100 and some of the proposed revisions, it is clear that we do not agree with others. However, we wish to assure the standing committee that the college is committed to eliminating sexual impropriety and sexual abuse by dentists. It has amended its procedures to this end and will continue to make any changes that are found to be necessary and in the public interest.
We know that effective legislation is a prerequisite to carrying out our mandate. We ask that the standing committee heed our advice and that of many other experienced governing bodies so that the RHPA will have workable provisions which will allow protection for all involved.
We thank you for your time today. We have a copy of my submission, if it would help you in your deliberations, and we are certainly willing to entertain your questions.
The Vice-Chair: Thank you. Are there any questions?
Mr Larry O’Connor (Durham-York): One question, referring to page 10 of your brief, paragraph 24, the last sentence, on the hearings: “Secondly, it would be permitted to allow victims to present an impact statement at the penalty stage of hearings.” I thought I’d let you expand on that. To me, it would seem that as a college goes through this process, it might want to hear from the victim at an earlier stage than at the stage where it’s going to be setting the penalty. This being as serious as it is, it seems you might want to hear from the victim sooner. I’d like to have your comment on that.
Mrs Gelberg: I’ll let Dr Stein answer that.
Dr Minna Stein: Actually, during the course of the discipline hearing, the victim does have a role earlier on. The discipline hearing is made up of two hearings. One is the hearing as to the finding of guilt or innocence, and the second part of the hearing is with regard to penalty. In the first part of the hearing, where the question of guilt or innocence is being determined, the discipline committee does hear from the victim in terms of finding out what the facts are, the facts to permit them to have a finding of guilt. If they do find the member guilty, then the penalty phase of the discipline hearing starts, and at that point the victim should be allowed to present an impact statement so the committee can take into account the impact this abuse has had on the victim when they in turn give the penalty to the dentist.
The Vice-Chair: Thank you for your presentation.
ONTARIO BOARD OF EXAMINERS IN PSYCHOLOGY
The Vice-Chair: The next presentation will be by representatives of the Ontario Board of Examiners in Psychology.
Dr Catherine Yarrow: Good afternoon. I’d like to introduce myself and my colleagues. I’m Catherine Yarrow, the acting registrar for the Ontario Board of Examiners in Psychology. Beside me is David Lumsden, a public member of the board of examiners in psychology, and beside him is Ronald Slaght, our general legal counsel. Unfortunately, another public member who also planned to attend today is at home in Ottawa nursing a severe case of bronchitis and sends her regrets that she wasn’t able to participate.
In reviewing the provisions of Bill 100 and its predecessor, Taking Action Against Sexual Abuse of Patients, the board noted and endorsed two goals that were stated by the Ministry of Health in introducing this legislation protecting potential victims of sexual abuse and protecting victims who have been abused from being abused a second or third time, being victimized again.
In reviewing the legislation, our board was concerned about whether this legislation has met those goals, whether the legislation can be implemented effectively in the regulatory process and whether it adheres to fairness, which will also speak to how effectively we can implement the legislation in regulating the profession and protecting the public.
Our board has a history of standards which proscribe sexual intimacies with clients. As far back as the late 1970s, our board developed standards and enforced them in the disciplinary process, proscribing sexual intimacies with clients. In the 1980s, sexual misconduct was introduced into regulation in our profession, in regulation 825, and in 1989, our profession held a workshop for members of the profession about the whole issue of sexual abuse of clients so that they might be more aware of the issues and understand the concerns.
Today, I’d like to speak to some of the issues from the point of view of the regulator. I’ll ask David Lumsden to speak to some issues from the perspective of a public member of the board, and then if you have questions, we would welcome questions of any of the three of us.
Our initial concern with Bill 100 was with the actual definition itself. The term “sexual abuse” raised concerns for us inasmuch as there’s some difficulty shoehorning the three (a), (b) and (c) definitions into abuse, and we may at some point run into some argument about what’s abusive and what’s not. From the point of view of our profession, it’s misconduct to engage in any of the three behaviours listed in the definition. We don’t really wish to enter into defence arguments about whether it’s abusive or not. We’ve defined it as misconduct, and we would find the term “sexual misconduct” far more useful to us in the overall definition than “sexual abuse.”
Furthermore, the definition limits itself to trying to specify which acts will be considered misconduct for the purposes of discipline. We do not wish to limit our tribunals quite so rigidly, and we would like to include the phrase, in the introductory line of the definition, “includes but is not limited to.” That allows for occasional circumstances where clearly misconduct has occurred, but on a technicality, a successful defence might manage to avoid prosecution. Frankly, that would be a tragedy and that would be quite counter to the spirit of this legislation and quite counter to our own goals as a regulator protecting the public.
Dr Lumsden will speak a little further to an additional concern we have about the definition.
With respect to the matter of mandatory reporting, we have had certainly a voluntary reporting provision in our guidelines to the profession for a number of years. We even have some guidance about when it might be appropriate to report to the college as opposed to confronting a fellow professional.
We have some concern raised if there were to be a provision of across-the-board mandatory reporting if a client was not ready to be named or to come forward. The first concern is a prosecutory one, that is, that we would most likely not be able to go forward with discipline, in the absence of a witness willing to testify, unless we were able to fortuitously come up with some other evidence that we could use in discipline.
In addition to that, our own experience has revealed to us that not only are some of our members potential offenders committing sexual misconduct, but when they know that something is afoot and a report has gone in to the board or might go in to the board, they may actually intimidate the client. Even though they may not know the name of the client or may not have been told or may not have been advised of a name, they can guess pretty well which case it is that’s come to the attention of the board. We have some serious concerns about safety issues for the clients if mandatory reporting were to be required in all circumstances of this nature.
We do nevertheless endorse the view that professionals should take responsibility for each other. There’s one particular exemption, however, that we would like to seek that’s of particular relevance to our profession, which is a treating profession that might well be treating individuals who have committed some of these acts and engaged in the conduct described in this legislation. We would like to seek an exemption for anyone in the course of providing such treatment having to report to the college an admission in this confidential, trusting relationship that the individual has engaged in this type of conduct unless the treating therapist, the treating professional believes there is a continuing risk of harm. In that case, it would be expected that the professional would report. We still hold the view that public protection is critical and if there’s continuing risk, there’s absolutely no question that we would want that provider to report.
With respect to reporting by employers, we don’t have concerns about that. It’s just a minor wording change. Some members of our profession would like to argue that they offer services which are broader in scope than those defined by “health” services, so we’d simply rather insert the word “professional” services rather than restrict it to health services.
Finally, our board endorsed the removal in the ministry’s amendments of the requirement for reporting across professions of other types of misconduct, incapacity and incompetence, as our board thought it would be very difficult to be able to identify particularly incompetence in members of other professions and difficult to judge one another’s activities. But certainly in the sexual abuse domain, we don’t have concerns about the requirement for mandatory reporting in that realm.
We do have some concerns that there might be overreporting with the threat of a fine if these other categories were included in the act and are not sure what protection would be afforded the reporter if a professional, on one hand, were required to report upon threat of being fined otherwise and then if that person did make the report, whether there was any vulnerability to a subsequent lawsuit.
With respect to within-profession reporting, as I say, we have a history of professional standards and guidelines which already deal with that matter and think that’s the most important way to proceed within a profession.
Finally, I’d like to speak to the program for funding, and we’d simply like to rephrase the eligibility for the program for funding for therapy. Again, this has to do with our own experience in discipline, that the program as it’s described now would be for those individuals who were sexually abused by a member while they were a patient. In our experience, members of the profession who may get involved in sexual intimacies with clients often have a very quick and rapid termination of professional services in order to facilitate the onset of this more intimate relationship. It’s not just that these things occur in the therapy hour; sometimes they occur very suddenly after what seems a rather abrupt and inappropriate conclusion of the service provision.
We would rather the wording recognize eligibility for the funding if the individual has been the complainant in any discipline hearing which makes a finding of sexual misconduct or professional misconduct relating to sexual conduct because, as I say, we have this post-termination issue where, really and truly, we would argue there’s continuing influence and the professional relationship has not truly ended.
I’m going to let David Lumsden now speak to some of the other provisions in Bill 100.
Mr David Lumsden: Thank you for the chance to appear before you. I am, as Dr Yarrow said, one of the three public members on the 10-member board and I’m a full participant in OBEP and in the transition council. I’ve also been a member of the registration committee. I’m presently a member of the complaints committee and I’m also co-chair of the client relations committee.
As a public member, the first thing I wanted to say was that I fully support all of the recommendations in the OBEP brief towards improving Bill 100. My own concern is, of course, serving and protecting the public, and I want to address briefly four connected issues.
It is vital to secure, first, effective regulation of the profession; second, effective prosecution of offenders; third, effective protection of the public, and fourth, an accessible and fair discipline process for all involved with an appropriate penalty. All these, in my opinion, require changes in the present Bill 100, and in speaking now, I’m going to be supporting recommendations 2, 3, 4, 5, 9 and 10 in the OBEP brief.
First, about effective regulation: As Dr Yarrow has already said, we believe it is a good thing, and I do as well, that Bill 100 will focus on sexual abuse, that issues of misconduct and incompetence across the professions will not be there because it is, I believe, not reasonable to expect that members of one profession will know the standards and practices of all 23 other particular professions. Keep the focus on abuse.
However, it is not conducive to effective regulation, in my opinion, to require mandatory reporting within or across professions regarding sexual abuse or misconduct if there is no patient or client name attached to the document. Yes, all of our members are to be encouraged to make sure that potential claimants do come forward or allow their name to come forward. Yes, it is the responsibility — and the college is going to live up to that — to make sure that there’s adequate publicity and access for the general public to get into our complaints process. We have in fact recently added yet another investigator to the board to help ensure that. But without a name of a complainant, nothing can really be done with a report. It’s a useless piece of paper in many ways, and it raises real confidentiality and danger issues. One simply can’t prosecute on the basis of that document without a complainant’s name. So I would support recommendation 5, deleting that aspect.
Under effective prosecution, I very strongly support our recommendation number 3, which is asking that the intervenor status for both the complainant and for any related advocacy group be deleted from Bill 100. That is to say, what I’m arguing for is that we leave the present process of the college disciplinary tribunal prosecuting the case intact. Let them make their decisions and not add anything further to the process.
I am personally very, very much impressed by the danger that a truly guilty practitioner will get off, because there would be, under this present idea of an intervenor status, more people involved, more lawyers involved, more witnesses brought forward, and the more people brought in like that, there’s a real danger, in my opinion, that grounds for appeal will arise in the course of that lengthy hearing. I am convinced that our college does prosecute, and the bill threatens to undo that good record, in my opinion.
However, I would also say that the complainant very definitely does have the right to be present throughout, does have the right to have a support person of their choice present throughout, but otherwise not actively participating, does have the right indeed to provide an impact statement to the disciplinary tribunal and a finding of guilt before the penalty is decided. That is fair. Therefore, I’m asking that the intervenor status section be deleted.
Further, I would say that deletion also saves time in a hearing, even more so now that the Ministry of Health is suggesting that indeed the idea of disclosure 10 days in advance be extended to any such intervenors. That will indeed, in my opinion, give rise to at least two sets of hearings, one to hear the disclosures and then make a decision and so on and so forth. That will lengthen and indeed enhance the cost and difficulties of the hearing.
Further, it’s not effective prosecution if the disciplinary tribunal is in any way constrained regarding automatic penalty, regardless of the actual degree of harm to the complainant. Please allow the disciplinary tribunal to look at a full range of penalties. Bill 100, in my opinion, needlessly sets out an automatic penalty without regard to the real harm done. It doesn’t even allow for an assessment of the particular complainant. Delete this, as per our recommendation 4.
Let the discipline tribunal truly and freely ascertain the degree of harm, including the degree of harm for remarks and behaviour, because we very strongly do see that item (c), contrary to some groups’ opinion, is an area of real harm for some groups, particularly in a multicultural population. For some groups, that joke may well be more shaming than other activities or a joke to another group. So this allows the disciplinary tribunal to go for the real harm and allows for the views of the survivor as to the real impact on her or him to enter into the penalty deliberations.
Let there be then recommendation 10, that is to say, required insurance carried by the college members to truly fund the needed amount of counselling money.
Thirdly, in terms of effective protection of the public, it is not protecting the public, in my opinion, and it’s not protecting the survivor if the money for the counselling goes to an unregulated practitioner, nor does this rewarding of an unregulated person with jobs encourage them to seek regulation in a college membership.
Yes, it is true that many survivors believe that once bitten, twice shy. Having been hurt by somebody who is a regulated member, they don’t want to go back to anybody who’s regulated. However, our concern, and mine certainly as a public member, is that if they do go to an unregulated practitioner, even if they do follow the Ministry of Health’s suggestion that there be a form signed so that the complainant recognizes that she or he is going to see an unregulated practitioner, there is no protection for that person from being revictimized. They have no college to appeal to for discipline if they’re going to an unregulated person.
What I would recommend instead is that each college provide the complainant, the survivor, with a list of regulated practitioners from which they themselves can choose whom they wish: female or male, style of approach, school of theory, whatever. There is some choice, they do have some control over it, and certainly then the college is able to live up to its mandate to protect the public by making sure these victims of abuse do not go to an unregulated area where they are further, in our opinion, at risk.
Further, with regard to recommendation 10, Bill 100 very inappropriately, in my opinion, requires that the money for the counselling be overseen and disbursed by the very same body which is also charged with prosecuting the case. In other words, there will be an inevitable perception of conflict of interest. The same group that is prosecuting is the group that’s giving out the money. Therefore it’s obvious that some people will say they won’t be interested in really seriously prosecuting because it’s going to cost them money.
We would urge, therefore, keep the colleges at arm’s length from the counselling fund. Let an insurance carrier handle it and handle the disbursements, and that way the mandates of the colleges to protect and serve the public will indeed be adhered to.
Finally, let me just emphasize that indeed this college, all of us on it, are committed to making sure there is zero tolerance of the behaviours indicated. On that note, I would like to end.
The Vice-Chair: Thank you very much for the presentation. Unfortunately there’s no time for questions, but we do deeply appreciate your presentation.
The Vice-Chair: The next presentation is by Sylvia Bradley. Is Ms Bradley present? Good afternoon. Would you introduce yourself and then proceed with your presentation. We have copies.
Ms Sylvia Bradley: I have to talk into one of these? My name is Sylvia Catherine Bradley. I’m going to take my hat off.
Preamble: Before I begin my main presentation to you, I would like to apologize for the flood of paper I am now adding to. As an advocate for assaulted women and children, I have made a practice of keeping only minimal notes, for the protection of the women and children for whom I speak, and the prevalent misuse of the disclosure legislation being what it is.
When I prepared my presentation for you on Sunday, I focused on the fact that I would have 15 minutes to present to you my position on Bill 100. I did not realize until I attended the hearings yesterday that I might have asked for additional time, 15 minutes for myself as a survivor and another 15 minutes to speak as an advocate for other survivors for whom I am working.
However, at the hearings yesterday I also noted that the committee is much less formal and time-ruled than I had feared. Therefore I am asking your indulgence before I begin. My main presentation is timed to slightly less than 15 minutes, but I would greatly appreciate your allowing me to continue for an additional short period of time in order that I may answer some of the questions and concerns raised by members of the committee and some of the professional organizations that presented to you yesterday.
I carry a lot of information — ideas and knowledge and facts — in my head, in addition to the personal information given to me by women for whom I advocate. I’m used to knowing what I know and I forget until I start to put it on paper how much is there. I’m perfectly willing to share these ideas and this information — I don’t feel that I own it — but it doesn’t occur to me to communicate this information until I’m in a situation, such as the hearing yesterday, wherein it becomes apparent that there are information gaps that need to be filled. So if the committee will indulge my request for a little more time following my main presentation, I will address the issues raised at yesterday’s hearings and answer any questions the committee may have for me arising from my presentation. So I will officially begin.
As I said, my name is Sylvia Catherine Bradley. On September 30, 1971, I was taken to the emergency department of the Ottawa Civic Hospital. I was extremely depressed, suicidal, homicidal, hysterical and still slightly drunk following a six-week attempt to eradicate the pain precipitated by the breakup of a romantic relationship. I was seen and treated by Richard Hill, MD, an intern from the department of psychiatry. After gaining my confidence and trust, Dr Hill discharged me from the hospital, drove me to my home in his car, gave me more drugs, put me to bed and then raped me. For the sake of brevity, I am giving you, the committee, the Reader’s Digest version of the events of that night and my subsequent attempts to bring this matter to justice.
For the purpose of clarification, I have attached to this brief the following materials: (1) My original statement of complaint to the College of Physicians and Surgeons of Ontario, dated September 14, 1991; (2) my response to Richard Hill’s response to my letter of complaint, dated December 5, 1991; (3) a press release issued and distributed by me outside the College of Physicians and Surgeons in early September 1992; and (4) a copy of the decision and reasons for decision sent to me by the CPSO on November 11, 1993.
Richard Hill’s “treatment” of me is etched permanently and vividly in my memory bank. I was disassociated at the time and I experienced the whole sequence of events from a slightly out-of-body objective position. From that position, it was very clear to me that he knew exactly what he was doing. There was no hesitation, no nervousness, no sudden, spur-of-the-moment action. He was very cool, dispassionate and purposeful, obviously experienced. He knew exactly what he was doing, what he wanted and how to get it. I knew when I reviewed the events that he had done this before. I also knew that he would do this again and that I had to stop him. I felt a responsibility to other women.
At that time, October and November 1971, I felt okay, I was coping. I was being seen by Dr Casselman, a psychiatrist at the Royal Ottawa Hospital, as an outpatient and I had recovered to some degree from my reaction to the breakup of my relationship and my initial shock response to Richard Hill’s assault on me.
Knowing of nowhere else to go with this information and believing that she would help and/or advise me, I disclosed the incident and my concerns to Dr Casselman. Her initial statement to me was, “Leave this with me, Sylvia,” so I did. Two or three weeks later, at the end of a therapy session, I asked her what was happening about Dr Hill. Her reaction this time was a long pause followed by, “Sylvia, I think it would be best if you just forgot this whole thing.”
Unfortunately for me, I was no longer disassociated and her words and attitude hit me like a freight train. I was devastated. The feeling of betrayal was overwhelming, soul-destroying. I turned and left her office in shock. I did not keep my appointment with her the following week, nor did I keep the one given to me by hospital staff when they called to inquire of my absence and rebook an appointment. I did not report Dr Casselman’s behaviour or advice to anyone at that time. Who could I tell? What could I tell them? Who would believe me anyway? Dr Casselman had believed me about Dr Hill; I know that from her tone of voice and attitude and demeanour, and she wasn’t willing or able to do anything, so where was I to go? Back to the bottle and pills, of course.
She advised me to forget the whole thing, and alcohol and drugs were the only means at my immediate disposal for following her advice. I did that with a vengeance. My use and abuse of alcohol and drugs skyrocketed at that time and I proceeded on a course of active drug and alcohol addiction for the following 17 years. My mistrust of and disillusionment with the medical community was huge, and virtually the only reason I continued to seek any medical assistance was to obtain drugs. The more I used, the more I needed, and I was never able to “forget the whole thing,” as Dr Casselman had advised.
In July 1993, at the discipline hearing on my complaint, Dr Casselman was called to testify. Clearly, she had no memory of me or my report to her of Richard Hill’s behaviour. Not surprisingly, there was nothing of my disclosure to her in the hospital case notes made by her at that time. In watching and listening to her testify, I wondered how she had done it, how she had managed to follow her own advice to me. It was clear that she had forgotten the whole thing. I wish she could have shown me how to do it.
As a result of the media attention given to my particular complaint, 10 other women have come forward to the college with similar complaints against Richard Hill. In addition, 17 criminal sexual assault charges have been laid against him so far and more women continue to come forward.
I do not doubt that Dr Casselman, now retired, was an adequate and sometimes helpful therapist for others of her patients. I also believe that, had mandatory reporting been the law and not just a vague, ethical/moral obligation at that time, she would have had to report Richard Hill and he would have been brought to discipline. In 1971, when he raped me, Richard Hill was still an intern. Had he been reported then, it is possible that he would never have been licensed by the CPSO to practise medicine in Ontario and none of these other women would have been assaulted by him while he was ostensibly practising medicine.
Further, although I’m not aware of any complaints that predate 1971, I have no doubt that I was not Richard Hill’s first victim. He was very smooth, practised, confident. Perhaps he did not get as far with some of his earlier victims. Perhaps their early warning systems were more functional than mine. Perhaps he needed practice to nail down the exact words and gestures that would get him what he wanted and which words and gestures would set off alarms and ruin his game.
Therefore, I strongly recommend to the standing committee that the sections of Bill 100 dealing with mandatory reporting not be weakened or altered in any way. The mandatory reporting of words and gestures is as essential as the mandatory reporting of actions.
For the rest of my time with you, I wish to address the issue of most recent great concern to me in my dealings with the College of Physicians and Surgeons of Ontario: standing — full party status for complainants.
Bill 100, as it is currently written, would have the discipline processes at the colleges of the regulated health professions function in much the same way as they are functioning under current law. The complainant in this process is only a witness for the college and does not have standing at the hearing. Only the defendant and the college have standing. They are parties to the proceedings. Only parties to the proceedings may call witnesses, cross-examine witnesses, introduce expert witnesses or appeal decisions of the tribunal.
A complainant may be given leave by the tribunal to intervene on certain matters if they want to hear what she wants to say or if she has the money to hire a lawyer to act for her. Otherwise, her participation in the process is limited to testifying as a witness and enduring usually long and intrusive and often abusive cross-examination. She will be encouraged to communicate with the college only through the investigator assigned to her complaint.
In my case, when I attempted to speak by telephone with Joyce Harris, the lawyer for the college, and to encourage her, plead with her to make submissions to the panel on the issue of Richard Hill’s competence, she told me (a) that she was not willing to argue for a finding of incompetence, and (b) that I had to remember that she was not my attorney, that she was acting for the college. This conversation took place one week before the complaint was to be heard in July 1993. I fortunately was able to receive some assistance from Marina Browning, a staff lawyer with the Barbra Schlifer clinic. Ms Browning was denied by the panel the right to intervene on this issue, but she did manage in subsequent discussion with Ms Harris to convince Ms Harris to at least put to the panel my desire that Richard Hill be found incompetent.
The first opportunity I was given to meet with Ms Harris and review the college’s position did not take place until the last working day before the hearing was to start. At that time, Ms Harris told me that Hubert Mantha, the lawyer I had retained in 1972 to assist me in having Richard Hill’s licence removed, was not being called as a witness by the college. I was aware, from conversations with the college investigator and a subsequent conversation with Mr Mantha, that he was entirely willing to appear as a witness at the hearing. Although he no longer had my file or any written records, he said he remembered me and he remembered the doctor’s name, Hill, very clearly, and he remembered that I had come to him primarily out of my concern for other patients who might be assaulted by Richard Hill.
His advice to me at that time was that it would be necessary for me to have some harder evidence in order to have this doctor’s licence removed, and therefore he advised me to initiate a paternity suit, assuming that if I won the paternity suit I would then have the evidence necessary to have the doctor’s licence removed. I do not recall him advising me at that time that I could go directly to the CPSO. I don’t think he did, perhaps because he was aware how unlikely it would have been in 1972 that my complaint would have been taken seriously.
At any rate, Hubert Mantha was not called by the college as a witness. Ms Harris told me that his testimony was unnecessary. She stated that in her opinion my testimony and the testimony of the expert witness that she would call would be sufficient for a conviction. Because I did not have party status, standing, I was not allowed to call him as a witness, and as you will note in the 19 pages of the reasons for the decision — acquittal — given by the panel, his testimony on the reason for my contacting him, my concern for other patients, would have been very helpful. The panel could not understand why I, an ordinary woman, would contact a lawyer, except for financial gain, of course.
Further, the expert witness called by the college testified only to the usual behaviour of victims of sexual assault. No expert witness was called to testify to the usual behaviour of perpetrators of sexual assault. It is very clear from the reasons for the decision that the panel was absolutely unaware of and had received no education on the common behaviour and attitudes of perpetrators.
In the final paragraph before they acquit him, they state that “it would have been unusually bold for a physician to perpetrate the alleged act when the patient had an appointment within hours with Dr Hill’s chief.” Nowhere do they indicate that they had any awareness of the fact that one of the major features of sexual assault that will enhance its appeal to perpetrators is the element of danger. The more dangerous it is, the higher the risk, the more exciting it is for perpetrators. Rather than viewing my appointment the following morning with Richard Hill’s chief as a possible deterrent, the panel ought to have recognized it as a further enticement to him to perpetrate.
When I asked Ms Harris at a later date, after the decision had been rendered, why the college did not call an expert witness to testify on the common and usual behaviour of perpetrators, she stated that this was a good idea and that this idea had never been considered by the college. I certainly hope that the college will consider it now and implement it at all future discipline hearings.
The CPSO discipline panel hearing my complaint against Richard Hill found “the charges of sexual impropriety not proven” and “the incompetence charge was not proved” on November 9, 1993, despite the fact that 10 other women had come forward to the college, four of them while my complaint was still being heard. Ms Harris felt that there was not enough “similar fact” to adjourn my hearing and call them as witnesses on my complaint. I did not have party status and so I could not insist on seeing the new complainants’ statements and judging for myself. Ms Harris also stated that at that time, day 2 1/2 of the hearing, she felt confident that my case was strong enough to warrant a conviction as it had been presented and so she would proceed on my testimony alone. Obviously, the panel did not agree with her.
On November 15, 1993, less than one week later, I was in attendance at the CPSO while a lawyer representing Richard Hill argued successfully to another discipline panel that “witnesses are not the property of either the prosecution or the defence.” What he was saying, and what the panel accepted, was that witnesses are kind of joint property. On these grounds, this discipline panel granted his motion for disclosure of the current addresses of the 10 women who had come forward to complain if the lawyer was willing to promise not to give the addresses to Richard Hill.
Hill’s defence lawyer would not give the panel such a promise at that time, but the panel left the option open to him. At any time that this lawyer is willing to give them a promise in writing that he will not give Richard Hill the current addresses of the complainants, he will be given their addresses by the college. Recently, a young woman in British Columbia who complained to the College of Physicians and Surgeons in BC about a doctor who had sexually abused her was murdered. The doctor about whom she had complained has been charged with first-degree murder.
As complainants, we are taking enormous risks, not just with our reputations but with our lives. As witnesses with no standing, we must depend on the college for protection and justice, and clearly it is either unwilling or unable to give it to us. The only way complainants can be assured of some degree of justice and the only way we will be able to maintain some control over our physical safety in the discipline process is if we are given, in law, full party standing.
If the 10 complainants about to embark on the discipline process at the CPSO had full status, they would not be just witnesses, property to be haggled over. Women have been persons in this country, not just property, since 1929.
In closing, I need to state that full party status will be virtually meaningless to most complainants unless they are also provided with the resources with which to exercise this right. In my opinion, these costs should simply be viewed as part of the costs of self-regulation and be absorbed by the profession affected. There is no reason why the discipline panel should not be able to order a repayment of the costs to the college for the complainant’s legal expenses against the defendant on a finding of guilt.
As a further note, on my particular complaint, because I was not a party to the proceedings, as were Richard Hill and the College of Physicians and Surgeons, I have no right to appeal the panel’s decision to the courts. The college could appeal the decision on my behalf, but I judge from the hurried and evasive conversations in which I have been able to engage Ms Harris on this issue that an appeal from the college appears unlikely. Any appeal would have to be filed by December 9, 1993. The college has given me no indication that it will do this, even though I have been told by employees of the college that I am a hero in their eyes. Being a hero to the college is small comfort.
The Criminal Injuries Compensation Board informed me that it will accept an application for compensation from me only with a finding of guilt. If I am strong enough to endure the criminal proceedings, I may be able to apply after the courts find him guilty; maybe not. We’ll see.
Please, ladies and gentlemen, amend Bill 100 to give complainants automatic full party standing in disciplinary hearings on all cases of sexual abuse. Please do not let what I have endured go for nothing. Amend Bill 100 so that it more adequately serves the interests of justice and protects the public.
The Acting Chair (Mrs Yvonne O’Neill): Thank you, Ms Bradley. It is true that yesterday there was some flexibility in the timing. I would at this moment offer one question to each caucus if they so wish. If not, we will proceed to the next presenter. Is there any question for Ms Bradley?
Mr Jackson: Thank you very much for your very cogent and compelling story for this committee. My concern is that the bill discriminates against victims. If you’re victimized outside of the medical profession, you have access to certain rights — limited rights, but you have access to them. But the process of Bill 100 limits victims’ rights.
You clearly have come forward as a victim and you’ve clearly indicated that this bill needs serious amendment. Can you answer to this committee how you feel that we would lock in place these circumstances for victims, as set out in Bill 100, while victims’ rights are increasing for the general public at a growing rate across Canada for a whole variety of other complaints?
Ms Sylvia Bradley: I’m sorry; I’m not clear what it is that you are asking me.
Mr Jackson: You will have access to the Criminal Injuries Compensation Board if you can prove in court that you were sexually assaulted. Once this bill takes over, my understanding is that you won’t really have that automatic right to go to court and that your access to criminal injuries compensation, as one example, will evaporate, because you will be locked into the process of Bill 100. Bill 100 isn’t law yet, so you still have those rights.
Ms Sylvia Bradley: Are you suggesting that when Bill 100, as it is currently written, is passed, it will be an either/or choice, either I complain to the college or I can go to the police and lodge a criminal complaint? Is this what you are telling me?
Mr Jackson: I would let the parliamentary assistant, himself a lawyer, explain to you whether or not you would be able to file a complaint to the college and undertake legal action simultaneously.
Mr Wessenger: I’m going to ask legal counsel to clarify that for the committee.
Ms Christine Henderson: Any survivor may simultaneously complain to the college and commence the civil suit if she wishes to do so, and also may of course complain to the police to involve the criminal justice system. Absolutely. In fact, if I may just say, as I said at the briefing last week, the subrogation provisions in the original bill have been replaced with a government motion that provides the college with a narrow statutory cause of action to proceed against a perpetrator to recover any funds that were expended for the therapy or counselling of a survivor. So the subrogation rights that would have accrued to the college no longer do so and there is absolutely nothing that would impede a survivor to sue civilly along with the report going forward or the complaint proceeding to a discipline committee.
Mr O’Connor: Thank you, Ms Bradley, for being here. You’ve been through quite a few of our hearings to this point. I appreciate you being here, taking the time and making this difficult presentation.
You stated in your presentation that there should be no softening of any of the mandatory elements of it. There’s been a change on (c), around the behaviour or remarks. You heard yesterday that this just muddies it. You heard the presentation before you saying: “Because we’re psychoanalysts, we might hurt somebody by reporting this. We might further victimize the patient.” I’d like to have your comments, as a victim, on that, if I could, please.
Ms Sylvia Bradley: Certainly. I will read you what I wrote in Further Thoughts after Attending November 29th Hearings. It addresses this issue.
First, I heard the fear expressed by a representative of the Ontario Massage Therapists Association about the possibility of inappropriate cross-discipline reporting. His concern is, in my opinion, not entirely unfounded. In my experience, many professionals are highly educated only in their own fields and might misinterpret activities with which they are unfamiliar. However, this whole issue can be easily addressed if all the colleges of the regulated health professions immediately introduce their members to these different techniques through the education programs on the topic of sexual abuse that they will be required to provide when Bill 43 is proclaimed into law. Perhaps the massage therapists association would be willing to provide speakers to the other RHP colleges to assist in the education of their members.
Next, I attended most of the committee hearings yesterday and I heard again the same concern expressed by more than one professional body. I specifically recall the OMA section on psychiatry and the Ontario Psychiatric Association presenting similar arguments about how mandatory reporting of words and gestures would certainly adversely affect their therapeutic relationships with certain mythical groups of patients.
First, we are only talking about mandatory reporting, not mandatory official complaint filing or mandatory disciplinary hearing attendance. Patients with any concerns can be simply and gently reassured that their anonymity is guaranteed and that they need never be contacted, let alone proceed with any college process. If the patient is confident in the integrity of the professional, there will be no threat to the therapeutic relationship.
And confidentiality is not an issue, second. We, survivors and survivor advocates, have been saying this over and over and over and over again to concerned professional bodies in numerous consultations over the past six months. Once again, I must express my frustration at not being heard. I no longer believe that these expressed concerns about mandatory reporting have anything at all to do with patients or patient confidentiality. They have to do, in my opinion, with an absolute unwillingness on the part of some professional bodies to assume the responsibility inherent in the tremendous power given to them by the public.
I would suggest that if this committee is truly interested in patients and the needs and desires of patients, it would be far more useful and productive for you to listen to the positions being expressed to you during these hearings by real live patients and survivors and their advocates than to involve yourselves deeply with the possible fears of hypothetical groups of patients presented you by not unbiased professionals.
The Chair (Mr Charles Beer): Final question, Mrs Sullivan.
Mrs Barbara Sullivan (Halton Centre): I don’t need it now; it’s been covered in the response to the last question.
The Chair: Thank you very much, Ms Bradley, for coming before the committee today. We appreciate it.
Ms Sylvia Bradley: I stated that this is legislation from California and Minnesota. There are only 10 copies, so I didn’t put it in the file. I’ll leave it for —
The Chair: Fine. The clerk will get that. Thank you. That came up yesterday and we appreciate those copies.
REGISTERED NURSES’ ASSOCIATION OF ONTARIO
The Chair: I next call upon the Registered Nurses’ Association of Ontario. Welcome to the committee. Once you’re settled, if you’d be good enough to introduce yourselves, then please go ahead.
Dr Ruth Gallop: I’m Dr Ruth Gallop from the faculty of nursing at the University of Toronto and a member of the RNAO. To my right is Pam Callahan, a member of the board, Shirley Broekstra, a member of the RNAO, and Margaret Watson, the interim executive director of the RNAO.
The RNAO is the professional voice for registered nurses in Ontario and lobbies government and other organizations on issues that affect the wellbeing of nursing and client care. RNAO provides service to approximately 13,000 members and seeks opportunities to collaborate with individuals and groups of citizens, government and other health care organizations to influence changes in the health care system to meet the health needs of Ontario citizens.
The RNAO welcomes this opportunity to respond to the proposed amendments to the Regulated Health Professions Act which address the issue of sexual abuse of patients. This is a growing concern in health care today and we applaud the government’s initiative in this direction and support the principles outlined in this bill.
I will comment on the definition of “sexual abuse.” We fully support the inclusion of subsection 3(3) in the original Bill 100, as written, and feel that the definition presented is both pragmatic and easily understood. We do not support proposed government amendments to this section. We are concerned that adding to clause 3(3)(c), “behaviour or remarks of a sexual nature by the member towards the patient,” the phrase “that are demeaning, seductive or exploitative” is confusing.
The issue is that sexual remarks should not be part of professional practice. Appropriate inquiry about sexual behaviour or sexual problems as part of the professional examination or consultation does not constitute sexual remarks. Further, we support the deletion of subsection 3(4).
Although sexual abuse is but one form of serious abuse, we do support highlighting sexual abuse as a means of reinforcing the seriousness of this problem. We fully support the inclusion of clause 3(3)(c), which designates sexual harassment within the realm of abuse, and applaud the recognition of the potential health consequences of such behaviour. It is desirable that this definition be in line with that set out in the Ontario Human Rights Code.
Intervenor status: We support in principle allowing for the possibility of third-party intervenors at a hearing and commend the government for identifying criteria for granting such status. However, we have some concerns regarding victims’ requests for full party status. While we understand the derivation of this concern rests in the perceived inadequacy of charges or representation at hearings, we believe that it behooves the regulatory bodies to provide adequate self-policing, the essence of self-regulation. We support intervenor status, since it will allow opportunity for the victim to report on specific areas, such as impact.
None the less, we do feel it is important that any other intervenors on behalf of the victim must seek and obtain prior approval of the victim. In this way, the victim does not risk being further victimized by others who might wish to use the case to further their own agendas.
Mandatory reporting: We support mandatory reporting of all forms of sexual abuse, verbal and physical, as described in section 85.1. We agree with the proposed amendments to subsection 85.1(1); however, we question the necessity for the phrase “obtained in the course of practising the profession,” as this appears to be somewhat redundant.
As with child abuse, sexual abuse constitutes a violation of the trust which is implicit in caretaking relationships in which one person is responsible for the care and wellbeing of the other. We would highlight that at present the professional nurse is bound by the standards of practice to report professional misconduct, and that failure to report in itself is professional misconduct. It is hoped that this new legislation will highlight the need for registrants of all colleges to be conversant with their professional obligations and that sufficient education will be provided that registrants be sensitized to the issues.
We wish to emphasize that RNAO endorses mandatory reporting for all forms of abuse, including remarks of a sexual nature. We do not believe that this will create a groundswell of mischievous reporting. Historically, the health professions have worked very closely together and protected each other, even when there has been animosity among professions. In fact, although health professionals espouse advocating for patients, we have failed in this endeavour, so that advocacy for vulnerable groups has had to be legislated. This legislation may also provide some protection and legitimacy for nurses who work in the employ of physicians and observe abuse, since the consequence of reporting may be termination of employment or harassment. At the least, the legislation allows them to advocate for the client.
The RNAO has some concerns about suggestions that reports of behaviour or remarks of a sexual nature would receive a different process being directed immediately to remediation — for example, brief counselling or a meeting between the victim, the alleged abuser and a third party — since this may trivialize the abuse. We are concerned that the proposed plan for remediation will circumvent the normal hearing procedure.
We are pleased that under subsection 85.1(4), which deals with the exceptions to mandatory reporting, treating professionals are no longer given a limited exemption from the mandatory reporting requirement. Given the length of time in therapy required to change behaviours, if possible, the risk of continuing abuse remains high. Assurances of no further abusive behaviour by the abusing professional are meaningless.
We oppose the inclusion of clauses (c) and (d), including competency and incapacity within the bill. Both issues are fully addressed within the professional misconduct sections of Bill 43 and the inclusion of them through these amendments shifts the focus away from the central theme of Bill 100.
Funding for treatment: Funding for counselling should attend to the victim’s wish for a non-physician, non-psychologist therapist, particularly if the abuser in the case was a member of one of these professions. RNAO supports the funding of necessary therapy and counselling for victims of abuse by health care providers. We would like clarification about the funding for victims when the therapy is provided by a professional currently covered by OHIP, such as a physician, or a private plan, such as a psychologist. Will colleges be required to reimburse OHIP or the private insurers rather than use public tax revenues or insurance fees? This needs to be clarified so that all therapists or professionals participate on a level playing field.
The RNAO supports the amendment, subsection 73(5.1), concerning reinstatement, to use the guidelines of the task force of the College of Physicians and Surgeons for reinstatement.
Other issues: The core issue in sexual abuse is that the power differential between care provider and patient is a significant one which does not change over time. The question therefore becomes whether, once a nurse-patient relationship is established, for example, is it ever appropriate for a sexual relationship between the two to occur? We believe that in psychiatric and mental health settings the answer must be no. Other situations would best be addressed on an individual basis in the context of self-regulation, taking into account the circumstances involved. For example, with the increasingly chronic nature of illness, there will exist increased opportunities for long-term nurse-patient relationships to be established. It is questionable whether relationships of a sexual nature could appropriately occur within such a context.
Finally, increasingly nurses are required to supervise unregulated health practitioners, including nursing aides, psychiatric attendants and so forth. Nurses are being removed from direct care and into increased supervisory responsibility without authority. There is no mechanism for reporting of sexually abusive behaviour by these unregulated providers. This may place both the regulated health professional and the public in positions of jeopardy. Given the intent of the bill to protect the public, thought needs to be given to this issue.
This legislation suggests a role for professional organizations in assuring that appropriate mechanisms are developed to provide supports for registrants who report professional misconduct. This would include helping individuals who acknowledge their own misconduct to access the education, support and treatment they require. Additionally, professionals who report the misconduct of others might need support for themselves.
Bill 100 is commendable in its forthright approach towards stemming the problem of sexual abuse. It’s a long-overdue piece of legislation which sets an appropriate standard of conduct for all health care providers in the province. It should serve as a deterrent to professionals who might otherwise abuse the privileged position of intimacy that being a health care provider allows.
Thank you and we’ll be glad to answer any questions.
The Chair: Thank you very much. I’ll turn first to the parliamentary assistant, who will answer some of the questions you raised.
Mr Wessenger: I’d just like to make it clear that the colleges will not be required to reimburse OHIP or the private insurers with respect to any of those services that are covered by —
Dr Gallop: Would that mean then that colleges which may be recommending therapists would tend to be encouraged to recommend a therapist who would not cost the individual colleges any fee?
Mr Wessenger: I note your concern there, but I think the clear intention is to let the survivor choose who is the most appropriate person to deliver those services. That’s certainly the intention of the legislation, to give that freedom to the survivor.
The Chair: Okay on that one? Thank you very much for coming before the committee.
ONTARIO HOSPITAL ASSOCIATION
The Chair: I’d like to call on the representatives from the Ontario Hospital Association. Welcome to the committee. If you would be good enough to introduce yourselves and then please go ahead with your submission.
Mr Peter Harris: My name is Peter Harris. I’m chair of the board of the Ontario Hospital Association. I’m joined today by Carolyn Shushelski, OHA director of legislation services.
Let me say at the outset, on behalf of OHA, that we are supportive of the efforts taken by the government to address the issue of sexual abuse of patients by members of regulated health professions. Hospitals employ or appoint many health professionals in the province and therefore will be directly affected by Bill 100. We are therefore pleased to have the opportunity to make this presentation to the standing committee.
OHA takes the issue of sexual abuse,and in fact abusive behaviour of any kind, very seriously. At the OHA October 1991 annual meeting, a resolution was passed which stated in part: “Be it resolved that the Ontario Hospital Association publicly endorse the philosophy of zero tolerance of sexual abuse within the hospitals of Ontario and develop guidelines for hospitals which, firstly, address the prevention of sexual abuse within hospitals and, secondly, provide recommended policies and procedures for responding to allegations of sexual impropriety and/or sexual abuse.
In May 1992, OHA established a task force to develop guidelines for hospitals related to all types of abuse of patients and staff. The guidelines were approved by the OHA board on November 6, 1993. These guidelines will provide direction and a framework that hospitals can adapt to their individual settings in developing or revising existing policies on abuse.
The guidelines address the following six areas of abuse: the abuse of patients by staff; the abuse of staff by patients; the abuse of patients by other patients; the abuse of staff by staff, that is, workplace harassment; the abuse of patients by visitors; and the abuse of staff by visitors.
Bill 100 proposes to amend the health professions code of the Regulated Health Professions Act, the RHPA, by adding a definition of sexual abuse which will apply to all regulated health professionals. We support such an amendment, because a single definition of sexual abuse would be a consistent guide for all regulated health professionals and for persons who employ such individuals.
However, we are opposed to an approach that would give the council of each college the authority, subject to the approval of the Lieutenant Governor in Council and with prior review by the minister, to make regulations clarifying or modifying what constitutes sexual abuse of a patient by a member of the college. In our view, the potential effect of such a provision would result in an inconsistent approach to the definition of sexual abuse. Persons who operate hospitals and health professionals who are required to report instances of sexual abuse to regulatory colleges may have great difficulty determining when the duty to report arises if what constitutes sexual abuse could be defined differently by various colleges.
A single definition would promote a common understanding of what is sexual abuse and will encourage confidence in recognizing and reporting incidences of sexual abuse. Therefore, we support the proposed government amendment to Bill 100 which would delete the authority of a council of a college to make regulations modifying or interpreting what constitutes sexual abuse of a patient by a member.
Bill 100 will make sexual abuse an act of professional misconduct. We note that subsection 95(1) of the Regulated Health Professions Act provides that “Subject to the approval of the Lieutenant Governor in Council and with prior review by the minister, the council may make regulations” in respect of the following:
“24. defining professional misconduct for the purpose of clause 51(1)(c).”
Further, Bill 100 will permit the council to make regulations:
“25.1. designating acts of professional misconduct that must be reported.”
Consistent with our previous comments, we support a single definition of sexual abuse for all regulated health professionals, as sexual abuse is professional misconduct. We are concerned that the proposed regulatory-making powers of the councils of the colleges “defining professional misconduct” and “designating acts of professional misconduct that must be reported” may permit the dilution, expansion or alteration of the definition of sexual abuse. OHA believes that there should be a single definition of sexual abuse and that it should be defined in the act.
We note that differences exist with respect to the duty to report regulated health professionals under the Public Hospitals Act and under the Regulated Health Professions Act as possibly amended by Bill 100. The inconsistencies relate to the following: the professionals to whom reports apply, the instances when the duty to report arises and the matters in respect of which reports are to be made.
The specific differences are as follows: The proposed government amendments to Bill 100 provide that a person who operates a facility where one or more members practise must file a report if the person has reasonable grounds to believe that a member, that is, any regulated health professional who practises at the facility, has sexually abused a patient. The report must be filed within 30 days after the obligation to report arises unless the reporter has reasonable grounds to believe that the member will continue to sexually abuse the patient or will sexually abuse other patients, in which case the report must be filed forthwith.
Further, Bill 100 requires a person who terminates the employment or revokes, suspends or imposes restrictions on the privileges of a member, that is, a regulated health professional, for reasons of professional misconduct, incompetence or incapacity to file with the registrar, within 30 days after the termination, revocation, suspension, imposition or dissolution, a written report setting out the reasons for such action. As sexual abuse is professional misconduct, we assume that sexual abuse must also be reported under this provision.
However, section 33 of the Public Hospitals Act presently requires the administrator of a hospital to report to the College of Physicians and Surgeons of Ontario only when the application of a physician for appointment or reappointment to the medical staff is rejected; or when the privileges are restricted or cancelled by reason of his or her incompetence, negligence or misconduct; or where a physician voluntarily or involuntarily resigns from the medical staff of the hospital during the course of an investigation into his or her competence, negligence or conduct.
We recommend that the reporting requirements concerning regulated health professionals under the Regulated Health Professions Act and the Public Hospitals Act be consistent.
Physicians and dentists are initially appointed and then annually reappointed to the staff of the hospital. In the course of the appointment to the hospital, occasion may arise whereby the hospital must investigate allegations related to the conduct, performance or competence of any such member. Such an allegation could be related to the sexual abuse of a patient by a physician or a dentist.
In accordance with procedural fairness, the hospital would advise the member of the allegations and the member would be given an opportunity to respond. The matter may be investigated by the hospital and may be referred to the hospital medical advisory committee, which would make a recommendation to the board of the hospital. There may subsequently be a hearing before the board of the hospital. With respect to physicians, the Public Hospitals Act provides for a right of appeal of the hospital board decision to the hospital appeal board and then to the Divisional Court. Throughout the process, adherence to elements of procedural fairness is essential. Ultimately, a final decision will be made about whether the health professional has sexually abused the patient.
As noted previously, Bill 100 proposes that a person who operates a facility will have to make a report to the college in respect of a member where there are reasonable grounds to believe that the member has sexually abused a patient. The report will have to be made within 30 days, or forthwith if there are reasonable grounds to believe that the member of a regulated health profession will continue to sexually abuse the patient or will sexually abuse other patients.
The effect of this proposal is that the filing of such a report in most cases will likely occur before the member has had the opportunity to exhaust all aspects of procedural fairness required by the Public Hospitals Act and the common law. We believe this is the intention of the proposed legislation and would recommend that section 33 of the Public Hospitals Act be reviewed in this regard and legislative reporting requirements by hospitals to colleges be made consistent.
Pursuant to the government amendments to Bill 100, sections 85.1, 85.2, 85.3 and 85.4 set out who, when, what and to whom instances of sexual abuse are to be reported. Section 85.5 sets out who, when, what and to whom instances of professional misconduct, incompetence or incapacity are to be reported.
Bill 100 proposes that paragraph 25.1 be added to subsection 95(1) to permit the councils of the various colleges to make regulations designating acts of professional misconduct which are to be reported.
What relationship, if any, does this provision have to the provisions in Bill 100 that relate to sexual abuse? What relationship does this provision have to the provisions in Bill 100 which deal with reporting of professional misconduct, incompetence and incapacity? This should be clarified.
Further, paragraph 25.1 does not specify who will be required to report. Is it intended that by regulation an operator of a facility could be required to report?
The legislation itself should provide who is to report the matters on which a report is to be made and when the duty to report arises. OHA would not support a provision which would permit the various colleges to make regulations that would require hospitals to report. Rather, we would support that the legislation itself provide consistent, clear guidance in respect of reporting requirements.
Thank you for your consideration of our submission. We’re prepared to answer any questions you may have.
The Chair: Thank you very much for your submission. Did the parliamentary assistant want to —
Mr Wessenger: Perhaps one question we could clarify. Reading the statute, it appears clear that it’s the institution itself that has the obligation to report the sexual abuse under the provisions of the act. Second, I think it would be fair to say that I don’t think a college, by regulation, could impose any obligation on a hospital to report in addition to — I think that would be not within the jurisdiction.
The Chair: Could I just ask one question? At the bottom of page 6 in the presentation you suggest that section 33 of the Public Hospitals Act be reviewed. To the parliamentary assistant, are there changes being proposed to the Public Hospitals Act to deal with some of these issues?
Mr Wessenger: Unfortunately, counsel today isn’t involved in the Public Hospitals Act. It would require a response from —
The Chair: Okay. I take it these have been put forward in another place as well, or is this the first time you’ve made this recommendation?
Mr Peter Harris: I am not aware of any other place where this recommendation has been made.
The Chair: It is now so put forward.
Mrs Yvonne O’Neill (Ottawa-Rideau): Just in connection with the comments of the parliamentary assistant, am I to take it then that the answer to the question that’s asked on page 7 is yes? “Is it intended that by regulation an operator of a facility could be required to report?” From what you’ve just said, is that correct, that the answer to that is in the positive?
Mr Wessenger: Yes. It’s the facility itself that has the obligation, and the act sets out that the facility can rely on the individual who has the responsibility for administering. In other words, the hospital administrator would be the one to in effect make the report on behalf of the facility.
The Chair: Any comments or further questions? Thank you very much for coming before the committee and for your presentation this afternoon.
PATIENTS’ RIGHTS ASSOCIATION
The Chair: I ask the representatives from the Patients’ Rights Association to come forward. Welcome to the committee. Please introduce yourselves and then go ahead with your presentation.
Ms Peggy Pasternak: My name is Peggy Pasternak and I’m a member of the Patients’ Rights Association. To my right is Mary Margaret Steckle. She’s the executive director, and she’ll be happy to field any questions you might have in the second part of our talk.
On behalf of the Patients’ Rights Association, I would like to thank the standing committee on social development for inviting us to present our views on Bill 100.
As you know, the PRA is a citizens’ advocacy group comprising both consumers and survivors of the health care system, as well as professionals from a wide range of areas such as the health, legal and academic communities. It was founded in 1974, and it has relied solely on membership fees and private donations. We are committed to acting as patient advocates by assisting patients to have their grievances heard by working to bring about a more equitable complaint process and by educating the public about their rights.
Throughout the 10-year consultation process leading to the Regulated Health Professions Act, the PRA has expressed great concern about the ability of the self-regulating health professions to deal fairly with all types of misconduct. We remain convinced that health care consumers are entitled to an independent and impartial process which will deal with these matters. Our subsequent comments should be interpreted in light of those concerns.
The general public comes to the health care system with a number of expectations, namely, that as patients, they will be receiving help from an accredited health care professional to alleviate the pain that the professional is there to treat. Patients, sometimes naïvely — and sometimes wrongly, it seems — expect that treatment dispensed will be responsible, ethical and caring, and it can sometimes come as quite a shock to realize that the provider isn’t thinking of providing care at all.
The PRA applauds the initiative of the current government to eliminate sexual abuse of patients. However, the proposed amendment to introduce the qualifying descriptives “demeaning,” “seductive” or “exploitative” are difficult, if not impossible, to measure objectively.
Part of the problem of sexual abuse is that abusers generally do not recognize or acknowledge that their behaviours or remarks might be perceived by others, including the patient, to be demeaning, seductive or exploitative. Moreover, staff and council members of various regulatory bodies have historically displayed the same lack of awareness about what constitutes sexual abuse.
We suggest that an additional element be introduced: that definitions of the words “demeaning,” “seductive” and “exploitative” be drawn from the literature of the victims themselves and that these definitions be included in the legislation.
Additionally, provisions should be kept in place to allow review of these regulations in order to clarify and/or extend what constitutes sexual abuse of a patient and that continuous outcome monitoring be considered to measure the effectiveness of the enforcement of these regulations.
The PRA also strongly urges that recognition be given to the fact that other non-sexual forms of abuse exist as well, such as physical, verbal, emotional and psychological, the latter being just as damaging because it tears into the heart of a person’s sense of self. Once again, survivor literature should be consulted. In the aftermath of such traumatic experiences, many victims, in order to understand their pain, have to write it out. There is much to be learned from these stories.
As to mandatory reporting, the PRA has always advocated that this be done. We are alarmed, however, that there has been some debate about deleting the clauses pertaining to mandatory reporting of practitioners who have committed an act of professional misconduct or are incompetent or are in some way incapacitated. Deleting these clauses would diminish the public’s right to safe and competent health care. Moveover, we believe that not reporting abuse of practitioners is an act of professional misconduct in itself. It is important that the traditional attitude of non-involvement among doctors and other health professionals be changed. They have a responsibility to protect both the public and the reputation of their profession.
We would also like to remind the committee that there are other non-regulated professionals, some accredited by different institutions, some not, who do slip through the cracks of this legislation. For example, some lay psychoanalysts are still practising with immunity. It is imperative that they too meet standards for competence and adhere to codes of professional and ethical conduct.
In regard to the non-party status of complainants, the PRA has long advocated party status for all complainants at disciplinary hearings. The existing disciplinary process in fact discourages victims to come forward and seek redress. It has so often become a retraumatizing situation for many victims. It is sometimes an excruciatingly traumatic journey patients take from their initial request for help with a pain, through the trauma of abuse, and then yet again through the trauma of cross-examination and not being believed.
The PRA strongly supports the concept of funding for counselling. We further believe that the fund should be available to support access to those sources of help chosen by the victims. For example, a victim should be able to get funding for transportation and child care to enable her to attend a self-help group if that is what she wants. Similarly, if a victim decides that art therapy is an appropriate medium for her or his situation, the funding should be made available for this.
It is unfortunate that we have to be here today to talk about the need to ensure the public’s right to ethical and professional care, the need to ensure that breaches of trust and breaches of power will not be tolerated and the need to ensure that patients have a greater say in the type of treatment they receive. But until the need to ensure will no longer be necessary, the Patients’ Rights Association remains committed to empowering patients to speak out and to demand that the health care system become responsible and accountable to the very people it is meant to serve.
The Chair: Thank you very much for your submission. Are there any questions at this time? Thank you very much for coming before the committee.
The Chair: Could I then call Ms Josie MacPherson. Welcome to the committee. The clerk is just handing out your submission, but please go ahead once you’re ready.
Ms Josie MacPherson: Ladies and gentlemen, honourable members of Parliament, my reasons for addressing the standing committee on social development are twofold: Firstly, I wish to share my strong sentiments and information related to Bill 100, and secondly, I urge the Honourable Mr Charles Beer, as my member of Parliament, to assist me in my personal plight with medical abuse.
Throughout my presentation I will be referring to a number of documents which are in your possession. I have also provided the Chair of the standing committee with a full disclosure package, as well as a videotape which aired a year ago on television on a talk show entitled What’s News. It is my wish that the videotape be viewed by the committee as further input into these matters, and my discussion will follow the sequence outlined.
I will begin by quoting from a letter which I wrote to my lawyer on October 26, 1993, which explains perfectly my situation:
“I have decided to terminate this matter between the doctor and myself as per our recent telephone conversations.
“I wish to take this opportunity to comment on my experience arising out of this matter.
“When I first came to you, I believed that initiating this was a viable way to seek redress for how I had been violated by the doctors. You informed me that if we were successful, the legal process would compensate me for my financial losses, but that the amount we could ask for was limited. Since I was interested in ethics, I could also proceed with the self-regulatory body, the College of Physicians and Surgeons.
“In process, I learned that the College of Physicians and Surgeons does not have a mandate for surgical medical abuse and that few cases reach the disciplinary stage, with even fewer achieving any form of redress for the complainant. In my case, I worked diligently to provide the college investigator with my evidence. It did not matter that I pointed out lies and inaccuracies on the part of the members complained against.
“I proceeded to the Health Disciplines Board without the benefit of legal counsel, since I could not afford your fee of $2,000 to attend with me. This was an emotionally draining experience and it proved futile. The doctor attended with his attorney and was afforded every courtesy. I, on the other hand, was reproached for bringing an advocate. Upon entry, she was told that she could not participate. I was not allowed admission of my evidence, which refuted false, unsubstantiated and highly slanderous comments made by the doctors and their lawyer…against my husband and I. It is noteworthy that I only became aware of these derogatory remarks at this late hour, well beyond the college process.
“The doctor, on the other hand, was allowed to pass around a photograph of another patient involving…a far worse condition than I had. He was also used as the medical expert in the case (clearly a conflict of interest).
“Last spring, in a meeting between you and I, I disclosed to you” that my family doctor “had been `making comments and gestures of a sexual nature which were demeaning, seductive and exploitative’ while I was his patient. I elaborated to say that he would repeatedly ask me if I was pregnant, even though he knew my husband worked out of town. He told me that my husband did not care about me because he was away so much and on another occasion asked me when my husband would be away next. This had an adverse effect on the quality of medical care that I was receiving, on my emotional wellbeing, on my marriage, and was highly unethical. I learned in process that he was sexually violating me. I also disclosed this in the college process and at the Health Disciplines Board. Even though the college has a mandate to take action against sexual abuse by doctors, my evidence was ignored. This raises the issue of mandatory reporting of sexual abuse as well as the penalty which should be incurred by a doctor who behaved as he did towards me.
“Finally there is the legal process. I have worked on this till I dropped, literally. This weekend, my back went into spasms and I became immobilized with pain. It was over. I have spent countless hours providing you with information and $30,000 on medical/legal fees.
“I attended” Dr So-and-so “for a simple chalazion drainage and faced a confused, out of control ophthalmologist who said: `I’ve already made 10 cuts and normally I just make two. I can’t find it. There’s nothing there. Now I’m worried about the bleeding.’ He later dismissed me without analgesics or a follow-up appointment or a referral to repair my mutilated, deformed eyelid. It took over a dozen appointments with, for the most part, uncooperative, non-committal specialists, a year of my life, a trip to California, and a two-hour reconstructive operation, at my expense of over $7,000, before my eyelid returned to a state that I could live with,” and this is not sexual abuse? “This raises the issue of a lack of disclosure and involvement among the medical community in cases of surgical abuse. It is my opinion that mandatory reporting of medical misconduct, incompetence and incapacitation is required if surgical victims are going to be assisted in the restoration of their health. It is noteworthy that” the family doctor “terminated our `relationship’ when I went to him with my damaged eye.
“The examination for discovery once again accommodated the doctor in question. It was held in Newmarket against my choice. My husband was asked to attend, resulting in a day’s loss of pay, and then was not examined in order to facilitate” the doctor’s schedule. “I was required to pay the extra mileage and added expense of your attending this process in Newmarket.
“Last week I asked you if you knew when I first came to you that I did not have a chance at succeeding in medical malpractice. Your response was that for every 100 people who become your firm’s clients, 60 do not proceed beyond the investigatory phase; this costs the client $4,000 to $7,000. Out of the 40 that remain, 20 do not proceed beyond the pre-trial stage with an added cost of $10,000 or greater. Of the 20 that remain, 10 settle out of court and the other 10 go to trial; this requires another $10,000 to $15,000. At trial, five win and five lose. Of the five that win, half are appealed by the doctors. The appeals take two years and no settlement is received before then. With every settlement there are legal fees which must be paid. A report by Robert Prichard in 1990, entitled Liability and Compensation in Health Care, showed that the number of medical victims compensated represents fewer than 10% of viable claims. This report recommended a no-fault system of compensation for victims.
“As soon as the paperwork is completed, my file will be closed, reduced to microfiche and in three years, shredded. All that will remain of this experience is the financial, emotional, and physical scars that my family and I will bear far beyond that time.”
I refer you now to a second letter which I wrote on the same date to a college investigator. Again, I ask that you bear with me; I have tried to black out any names and if I have failed to black some out, please do so.
“In our telephone conversation of today you asked me what I hoped to gain from an apology/retraction from” the family doctor. “I do not feel that I need to qualify my reasons. The statements made by him in a letter to” the investigator at the college “and later in a letter to you are false, unsubstantiated, and of a highly character-defaming nature. They involve a medical opinion by a doctor whom I have never met. Furthermore, the initial statements made about me formed part of a file in a medical investigation. I did not have disclosure of these statements and thus lacked the opportunity to refute them with an expert medical opinion. It is my wish to have them appropriately retracted with an apology.”
I refer you to a third letter written on that same date, this time to the Law Society of Upper Canada. It’s with regard to the doctor’s lawyer.
“I wish to comment on your letter dated September 9, 1993. I initially wrote to you asking for a retraction and apology from” the lawyer “for a false, unsubstantiated statement made by himself with regard to my wellbeing.” The lawyer’s “response indicated that he was quoting someone else. I still question his intent in providing a highly slanderous statement, out of context, without corroborating evidence in a medical investigation. To add insult to injury as a complainant, I did not have access to that statement. Furthermore, when I appealed the matter at the Health Disciplines Board, without the benefit of an attorney, the chair did not allow me admission of expert evidence proving that the statement was false.”
I bring you now to the last paragraph.
“Your decision was for the law society to take no action in these matters. I disagree. You stated that you could not comment on the actions of the chair of the Health Disciplines Board since this was out of your jurisdiction. The chair of the Health Disciplines Board is a lawyer and as such is she not governed by the same body that self-regulates lawyers in Ontario? You further stated that the law society is not in a position to review or second-guess the findings of the judge.”
I bring you now to the very last paragraph, on page 2.
“I decline your option to attend before a complaints commissioner at the Law Society since I am unable to attend with counsel and am aware that” the lawyer “is a lawyer and/or will attend with a lawyer. This negates this option for me, having experienced the unbalanced nature of the Health Disciplines Board hearing last year.”
In these letters, ladies and gentlemen, members of Parliament, I wish to make two points. One point is that in this country we may as well say there is no medical malpractice for victims of surgical medical abuse. My second point is that the system of law is not equal for both parties. There is an obvious discrepancy between the two sides. Obviously and clearly, the doctor’s side has a lot more rights than the patient-complainant’s side.
I refer you now to my position on Bill 100, and that is found in the document that I have labelled D.
A year and a half ago, I began a support group for survivors of medical abuse. Medical abuse is rampant; sexual abuse is rampant. I recently reviewed Bill 100, a proposed act to amend the Regulated Health Professions Act, and the amendments proposed to it by the ministry. Bill 100 is not strong enough. The proposed amendments weaken it further. It omits many of the recommendations stated in the final report on sexual abuse of patients by doctors, November 1991. I will discuss some of the key areas which are of concern.
Full standing/intervenor status: Full legal representation is a must for complainants who go through the college process, often to no avail. The doctors and their defence team scrutinize every aspect of the complainant’s medical-psychological past, including private journals and diaries. These personal documents are used to character-assassinate, ie, discredit the complainant. Without full legal representation, which includes the right to cross-examine and object, the complainant is set up to be revictimized. The prosecutor is the college lawyer and looks after its own interests. Due to the harsh nature of the complaint process, many complainants refuse to go through it. Full party participation is not included in Bill 100.
Mandatory reporting: Initially, the ministry’s initiative was one of zero tolerance for sexual abuse of patients by doctors. In the proposed amendments to Bill 100, the ministry’s new position is to reduce the incidence of sexual abuse by medical practitioners. Comments of a sexual nature, asking patients on dates, flirting with, and psychologically manipulating patients would not be covered. These behaviours often precede more overt acts of sexual aggression.
The proposed amendments to Bill 100 diminish mandatory reporting by “giving treating professionals a limited exemption from the mandatory reporting requirement.” A patient would in all likelihood confide in a treating professional about medical sexual abuse. Professionals should by law be required to report a colleague whom they believe has been or is sexually offending a patient. A good analogy is a teacher who by law is required to report suspected cases of child abuse. Historically, there has been a problem with disclosure, a non-involvement attitude, on the part of doctors.
Compensation fund for victims: Medical doctors found guilty of sexually violating their patients should be made financially accountable for their actions. This should include reimbursement of OHIP fees for services not properly rendered while sexually abusing. It is ludicrous that the taxpayer is burdened with this cost. Bill 100 does not include such a provision. Out-of-pocket fines should be incurred by offending doctors and the same should be included in a compensation fund for victims. Fines are not being imposed by the colleges for guilty members.
Bill 100 provides compensation to the victim in the form of a maximum of $10,000 to be used for psychiatric counselling. This is grossly inadequate. For victims, there is a grave loss of trust with the medical profession. The fund should entitle a survivor to full compensation for losses incurred as a result of the offensive act, including therapy of choice.
Physicians’ commitment to the patient: Victims of sexual abuse by doctors sustain irreparable damage. The majority of offending doctors go on practising. A few of the perpetrators receive temporary suspensions of their licences. The Canadian Medical Protective Association, the insurance company for doctors, pays all of their legal fees, while victims must pay expensive legal fees if they proceed with civil action. This in itself is revictimizing.
There is a need to educate and prevent further abuse. This can only be accomplished if patients, as well as doctors, lawyers, and judges become informed about the rights of patients. The final report recommends the creation of a patient pamphlet as well as a poster which would be visible in every medical office and emergency room. This information would empower and inform the patient about the appropriate boundaries for doctor-patient relationships and how to proceed if they are transgressed. Bill 100 does not include any provision for this.
As survivors of medical abuse, it is our firm belief that concrete change is essential if patients are going to be protected. We feel that Bill 100, amended to include all of the issues which I have discussed, must be passed as expediently as possible to become law.
I refer you now to document G, which is the Prichard report. This is taken —
The Chair: I’m sorry. How many more do you have? I apologize, but it’s just that we have a lot of people who are also going to be making their presentations and —
Ms MacPherson: How much more time do I have?
The Chair: I’m afraid we are over the 15 minutes, but if there are one or two others things you wanted to put on the record —
Ms MacPherson: I will leave that with you then and you can look through it at your own discretion. I’m sorry I’ve lost track of time in that I’ve used up my 15 minutes so quickly.
The Chair: That’s all right. If there is perhaps a closing document —
Ms MacPherson: There is one other thing I would like to highlight and I’ll refer you to that. I would like to highlight point 4, which is H. This is taken from June 1993, volume 2, issue 5 of the Medical Times, and I would like to quote a couple of lines from it. If we go to the end of the second column, it says:
“Despite such concessions, government remains unresponsive to the group’s insistence that mandatory reporting of sexual impropriety be replaced by voluntary reporting and a duty to intervene.
“While government has agreed to drop the provision requiring health professionals to report instances of professional incompetence or incapacity, the ministry has refused to accept our arguments against mandatory reporting of sexual impropriety.”
I feel it is essential that the mandatory reporting of medical incompetence, medical incapacity and medical misconduct which is in Bill 100 not be dropped. I urge you not to drop it. It is the only safeguard in that bill which will protect victims of surgical sexual abuse, and violating a woman’s body is sexual abuse.
In closing, I just want to refer you to the very last page, the bottom paragraph. I want to read to you the survivor’s mandate.
“Survivors of Medical Abuse firmly believes that patients have a right to be treated with respect and with integrity by their health care professionals.
“We feel that we should have access to copies of our medical records.
“We feel that we should have input and a say as to the course of treatment for our bodies, and above all we feel that if a patient is violated, they should have recourse through our legal process, and if there isn’t one in place that works, one should be established.”
The Chair: Thank you very much for your presentation and also for a number of other documents that you have provided and which we will be able to look at.
I might just say, as the first part of your presentation was directed to me, that I will be in touch with you so we can go over this in more detail.
Ms MacPherson: Thank you very much.
The Chair: Thank you again for coming before the committee.
Ms MacPherson: Are there any questions, or not at this time?
Mr Jackson: There are, but we’ve run out of time.
The Chair: Frankly, your presentation was the more valuable for getting more of it on the record, so we thank you for that.
Ms MacPherson: Thank you for your time.
METRO ACTION COMMITTEE ON VIOLENCE AGAINST WOMEN
The Chair: I call our next witness, the Metro Action Committee on Violence Against Women. Welcome to the committee, and please go ahead.
Ms Susan McCrae Vander Voet: Thank you very much. You must get very tired of listening. That’s what I’ve been sitting here thinking.
The Chair: No.
Ms McCrae Vander Voet: I’ll try to be brief and to the point. I don’t have a package of information to give you; it’s not in a form that I could do so. But I will see that one gets forwarded to the committee.
I just wanted to say that Metrac, the Metro action committee, is a non-profit organization whose mandate is to address issues of violence against women and children and to promote the rights of women and children to live free from violence and the threat of violence in all its forms. Metrac will be celebrating its 10th anniversary next year.
In the course of our work, we encounter many survivors of sexual abuse by professionals in the health field. It is their experiences of the abuse and of the investigative and disciplinary processes within health care regulatory bodies which form the basis of our presentation and our recommendations. In fact, Metrac’s work over several years led to the establishment and conduct of the independent Task Force on Sexual Abuse of Patients, which reported to the College of Physicians and Surgeons of Ontario. The cutting-edge work by that task force informs us substantially, and I know it does this committee.
In all of your deliberations about this bill, I would urge you to keep in mind three overriding things. First, it is a privilege to practise in a health care profession in this country, not a right. Second, survivors-complainants are the only injured party in a sexual abuse hearing, not the professional, not the college and not the association. Third, there is no evidence anywhere that I’ve been able to find that a psychiatrist, a psychologist, a counsellor or even a diviner has the tools to predict successfully when a person will or will not commit an act of sexual abuse.
We commend the government of Ontario for the initiative it has taken in bringing forward the legislation. It represents a step forward towards a badly needed campaign to curb violence against women and children. In this year alone we’ve had two landmark reports which have described in detail the extent of violence and the incredible level of tolerance which we experience in this country. The effort which Bill 100 represents to regulate health professionals, to stop and to prevent sexual abuse by their members will, we hope, signal a powerful and privileged group in our society that the abuse of this power and privilege for personal sexual gratification will no longer be tolerated.
Metrac supports the objectives of Bill 100 and many of the components of Bill 100. The issues we raise in relation to the bill reflect our concerns to strengthen the legislation and to maintain, rather than weaken, parts of it as they have been tabled. Some of our recommendations therefore will urge you to maintain what is already in Bill 100 rather than weaken it by adopting proposed amendments. Other recommendations are to add to the bill — for example, a preamble — measures which will strengthen it as a tool for removing the practice privileges of offending professionals who breach a public trust, their professional oath and their fiduciary duty.
The issues and recommendations which we are making today are as follows:
There is a serious need for a preamble to Bill 100. We recommend adoption and inclusion of the preamble proposed by the National Association of Women and the Law or its adapted form proposed by the Out of Patients Advocacy Network and supported by many other women’s groups and coalitions.
We urge you to add to the definition of “sexual abuse” female genital mutilation and other than that to leave the definition as it currently stands in the legislation. When Vayisuva Keyi appears before you this evening, she will be more precise and compelling about what is needed in this regard.
Mandatory reporting: It is crucial that this committee leave the mandatory reporting requirements in this legislation as they are, including the mandatory reporting of remarks and behaviours of a sexual nature, without exception.
Standing and paid legal representation for complainants: In keeping with practices in other administrative tribunals, such as the judicial council and the Human Rights Commission, full party standing for complainants must be granted, along with payment for legal representation for complainants.
Incompetence rulings in cases of sexual abuse: We strongly recommend that when a medical professional is found to be sexually abusive, he must be found to be incompetent as well as guilty of professional misconduct. We understand the compelling financial reasons which the Canadian Medical Protective Association may have for opposing that. However, that’s what we’d like to see.
Compensation for survivors: In view of the clear conflict of interest which colleges and other regulatory bodies of the health professions have in administering funds to survivors, the distribution of which depends upon their own vigorous investigation and prosecution of sexual abuse complaints against their own members, we recommend that the minister, upon proclamation of this bill, refer the matter of establishing an independent body to administer the funds to the advisory council for consultation with the wider community of interest and for recommendation to the minister.
Finally, Bill 100 and the ultimate test for the professions: We regard Bill 100 as a test for the health care professions regarding whether they are able to self-regulate where a serious breach of public trust and fiduciary duty by a sexually abusing member calls that ability into question. We recommend careful monitoring of all cases and complaints, with or without findings, which are brought to all RHPA regulatory bodies in order to assess the success of self-regulation in this area. That’s all I have to say.
The Chair: Thank you very much. Are there any questions at this time?
Ms McCrae Vander Voet: There are no questions?
The Chair: No. Thank you very much for coming before the committee this afternoon.
Could I then call Ms Sylvia de Persis. If she is not here, Ms Joyce Emerson.
The Chair: Is Ms Susanna Klassen here? Would you be good enough to come forward. While you’re doing that, I would just say to members that following Ms Klassen’s presentation we will have a short break and then reconvene with Ms Jane Doe. Ms Klassen, welcome to the committee. Please go ahead.
Mrs Haslam: I’d like some clarification. Since it is only 6 o’clock and you’re indicating that we would skip over the 6 pm and the 6:15, are you leaving time for them to appear before the committee at a later time?
The Chair: If they appear, they will be able to come.
Mrs Haslam: It’s just that it’s only 6 o’clock, and five minutes late should not be held against Ms de Persis.
The Chair: The break will be for the purpose of briefly having some nutrition.
Mrs Haslam: I understand that. It’s just that you said we would continue with Jane Doe. I wanted to be clear that we were not eliminating the previous two, since the time slots were very clear here.
The Chair: Thank you. Please go ahead.
Ms Susanna Klassen: I would like to thank this committee for this opportunity to express my opinion and my concerns regarding Bill 100. My comments arise from some work that I did on my university courses, when I studied the whole subject of transference love. I want to speak to mandatory reporting and to the reference to psychotherapy, how this bill could apply to psychotherapy.
I support Bill 100 in that it does not define patient status. My position with regard to the phenomenon of sexual abuse within professional-patient relationships is that there is an urgent need to correct the problem with high-profile public and professional educational programs. I believe that it is never acceptable for a sexual relationship to develop within the professional-patient relationship.
Having said that, I will disagree with the requirement of mandatory reporting. As well, I will argue that it is essential that Bill 100 ensure flexibility in all post-professional-patient situations, including post-psychotherapy and post-psychoanalytic relationships.
The recommendations I am making are that mandatory reporting be deleted from Bill 100, that the decision not to include a definition of “patient” be upheld by this committee and that Bill 100 ensure that individual situations will determine professional-patient status in all cases, including psychotherapy and psychoanalysis.
As a standing committee on social development, it is your responsibility to consider the significance of Bill 100 within the context of the existing social structure. We are living in an age that is characterized by unprecedented and rapid change. All institutions and professions are being examined and questioned and will increasingly be required to be accountable to the individuals they seek to serve and to the larger society.
Some of the forces shaping our social structure are the equal rights and human rights movement, feminism, the sexual revolution and the ecology movement. A common theme in all of these movements is the concept of empowerment, equality and respect for the value and uniqueness of the individual in relation to others and the environment.
Mandatory reporting: The requirement of mandatory reporting is at variance with the progressive social development initiated by these social forces. Mandatory reporting disempowers patients and violates their human right to decide for themselves how to respond to their own experience. This requirement also places the professional in a position of power that is paternalistic and intrusive to the patient. I have expanded on this in a paper that examines the Task Force on Sexual Abuse of Patients. It’s in appendix 1, after the yellow paper. I’d like to encourage you to read that.
Feminism, the equal rights movement and the empowerment movement have laboured to achieve an egalitarian society. The right to make choices in relation to one’s own life experience is a fundamental principle in a democratic society. The feminist movement was based upon achieving this right for women as well as men. Patients are now actively working to achieve these rights within a professional-patient relationship. The Ministry of Health has endorsed empowerment of patients as a basic tenet of the mental health reform process.
At a recent conference in Toronto the keynote speaker, Professor Kilean — and there’s information about how to get his tape; that’s all I had — identified an emerging social structure as post-patriarchal. The individual within this culture is concerned with restoring human values that were lost during an industrial period which relied heavily upon science and technology to establish truth. He identified the ingredients necessary for further development of this post-patriarchal culture as being concerned with human rights, self-regulation, negotiation, reciprocity, cooperation and partnership.
In light of this, I believe the decision to report a professional should be left to the patient who believes that he or she has been sexually abused. It would be more productive to create legislation that would facilitate the process of seeking redress in a manner that would be educative and therapeutic for both parties, rather than excessively punitive. From the previous reports that you heard, it’s not easy for a patient, and that I think is what should change. It should be possible for patients to seek redress with less pain and without being retraumatized.
Patient status and psychotherapy: My rationale for advocating flexibility in defining patient status and extending this flexibility to the psychotherapeutic and psychoanalytic relationship is well documented in appendix 3. This is a paper I wrote; I did research on the whole concept of transference love and the practice that comes from it.
The lifetime ban on relationships as proposed by the college of physicians and surgeons in the case of psychotherapy or psychoanalysis is, in my opinion, a violation of human rights. An imposed ban robs the patient and the professional of a fundamental right within a democratic society, which is to choose their relationships.
A study conducted to determine the prevalence of psychiatrist-patient sexual contact indicated that 65% of the respondents had been in love with their patients and that 92% believed that their patients were in love with them. These findings point to the fact that the state of being in love is a significant factor in the occurrence of sexual relationships that result from a psychotherapeutic relationship. It is debatable whether such sexual relationships are in fact abusive. Sexual attraction and falling in love cannot be legislated, nor are such phenomena restricted to certain physical environments. It would be more productive to examine and revise existing theories and practices that view sexual attraction and falling in love as a therapeutic tool.
I believe that emerging professional literature on transference love indicates that a paradigm shift is already occurring. This will radically alter theory and practice as they relate to patients and professionals who fall in love in a therapeutic situation. Hopefully the result will be a recognition that the state of being in love is not an appropriate therapeutic tool.
Until this happens, it is of crucial importance that the door is left open for individuals who fall in love in a therapeutic situation to enter into a full sexual relationship if that is determined to be in their own best interest. To render both professional and patient as helpless and vulnerable for the rest of their lives because they were engaged in a process that would illuminate their unique transference phenomenon can be a serious distortion of their reality.
For that reason, I believe it is dangerous to allow disciplining bodies to set standards and guidelines that go beyond the professional-patient relationship and extend into the personal private lives of individuals. It would be more productive to approach this problem of sexual abuse with an open, inquiring mind in order to avoid the possibility of creating a new victim population.
It is a well-known fact that there are successful marriage relationships that develop post-therapy. It is also recognized that many relationships between a professional and a former patient become traumatic only after the relationship has dissolved. This kind of trauma is common to most situations when relationships dissolve, especially if it was a meaningful relationship. A recent publication details the experience of a patient who claims she was traumatized because she was deprived of a sexual and friendship relationship with her former therapist. That’s a book that has just been published this past October.
In conclusion, I would like to emphasize that it is very important to distinguish between actual sexual abuse that occurs as a result of psychopathology and sexual involvement that is the result of two people falling in love. I do not believe that professional bodies and their governing bodies are presently equipped to respond adequately to this difference. Therefore, it is your responsibility as a committee to ensure that the legislation that is derived from Bill 100 is flexible and sensitive to diverse human need and that it reflects the progressive social movements that encourage the building of an egalitarian society in which individuals are encouraged towards personal empowerment.
The Chair: Thank you very much for your submission and also for the attachments you’ve brought. Ms Haeck, you had a question.
Ms Christel Haeck (St Catharines-Brock): I guess there are many questions I have for you, and we don’t have enough time today to delve into them all, but I did want to raise with you a question I have raised with a number of other people who have come before us. It relates to the mandatory reporting issue, particularly in the whole process of establishing a trend. I understand that, from your point of view, you may not view, particularly in the case of psychotherapy or psychoanalysis, that some incident of sexual abuse may in fact have occurred.
Shall we use another RHPA professional body? If you went to your family practitioner or to a dentist or a massage therapist and someone else was fondled in a way they did not consider to be professionally appropriate but did not feel they had the strength within themselves to report this to the college themselves but did in fact mention it to, say, the nurse in the front office and, as a result of this, the nurse — because we have in fact put forward mandatory reporting and the nurse would report this and there might be other incidents that would occur. You would have at least established a pattern up until the point where there would be an individual who had the inner strength to really go through this process. You have outlined that it is a difficult process, but there is this process. Would you not believe it is important to have that sort of track record to be able to say that someone has in fact done this on several other occasions and that really and truly this is a person who probably should be removed from their profession?
Ms Klassen: It’s a difficult question. Yes, I definitely believe there has to be accountability, but from the perspective that I’m coming from, if there are three or four people who have had the similar experience with the same person and we had established a social structure where these kinds of people could seek redress, they wouldn’t need to have someone else reporting for them. My main point is that it’s an empowering process for that person to go through to deal with it themselves, to make the decision themselves that, “What this person did to me has to be reported, has to be dealt with,” rather than someone else coming in and saying, “I’m going to do it for you.”
Ms Haeck: I don’t know that anyone else is going to do it for you. That person has reported it to someone but realizes — in my own office, as an MPP, I encounter a range of constituents who are very concerned about lawyers, occasionally people in the medical profession, and they realize that however strongly they may personally feel about their issue, they may not have the money, they may not have the time and they may not have the inner fortitude to deal with the structure that’s there, but they feel they have to tell someone.
Ms Klassen: But that’s what I’m saying to you: It is your responsibility to see to it that we establish a social structure that will make it possible for people to do this reporting themselves and not experience all this retraumatization.
Ms Haeck: Okay, thank you very much.
The Chair: Thank you very much for coming before the committee and for the background material you’ve also left with your presentation.
I believe Ms Emerson is here. I think at this point I would suggest we take a brief recess, if that’s all right, and come back at 6:30.
Mr Stephen Owens (Scarborough Centre): No.
The Chair: Did I hear “No”? If we could come back at 6:30 and then if we could do this: Ms Jane Doe has requested to appear before the committee but not to be televised. It would be easiest for us if we could begin with her and then move to Ms Emerson. If Ms de Persis has joined us, we can then hear from her as well and then go on to Ms Irene Crews and continue with the schedule. So if that is agreeable to everyone, we’ll break. Let’s make it 20 minutes, just to make sure we can do the things we need to do, and be back here at 6:35, at which point we’ll hear first from Ms Jane Doe. Is that agreeable to members of the committee? Yes?
Mrs Haslam: Are we closing the entire —
The Chair: No. This room will stay open.
Mrs Haslam: Just the televised?
The Chair: Oh, I’m sorry. With respect to Ms Doe, everything will be open — I believe that is the arrangement — except that it will not be televised.
Mrs Haslam: Fine. Thank you.
The Chair: We stand adjourned then until 25 to 7.
The committee recessed from 1816 to 1845.
The Vice-Chair: Good afternoon, ladies and gentlemen, members. The standing committee on social development, holding hearings on Bill 100, An Act to amend the Regulated Health Professions Act, 1991, is now in session.
We were advised prior to adjournment that Jane Doe would be appearing first. However, she is unable to appear tonight and will be appearing before the committee at a future date.
SYLVIA DE PERSIS
The Vice-Chair: The next presenter then will be Sylvia de Persis, who has requested that we proceed without TV for her presentation. Can that be changed at this time?
Interjection: The person now presenting?
The Vice-Chair: Yes, this next person is without TV. Just a moment, please.
It’s changed. Would you like to introduce yourself and then proceed with your presentation. Welcome.
Ms Sylvia de Persis: I am Sylvia de Persis. Naturally, I want to speak about sexual abuse and Bill 100. It is my conviction, ladies and gentlemen, that the definition of “sexual abuse” in Bill 100 should specifically include unnecessary surgical procedures that affect the sexuality of the victim.
Through a brief description of my experience with such procedures, I hope to make my conclusions more accessible to your understanding; that is, I intend to underline our goal for zero tolerance of medical sexual abuse by drawing attention to the fact that surgical abuse of a woman’s sexuality should not be exempt from Bill 100.
As a consequence of interference with my medical records and my medical care by a professional institution that was interested in disempowering my allegations of theft and sexual harassment, I was coerced into unnecessary procedures at a most vulnerable time. I was expecting the birth of my first child, and the events that led to the surgical procedures consisted of merciless pressure justified by false information.
I had an ovarian cyst that was large but not unusual in obstetrics, and I was forced to act on the assumption that the cyst was dangerous and that it could damage my baby and/or me. I was flatly refused the right to consider alternative methods of dealing with the cyst, such as draining the cyst, and I was consistently told that the cyst had to be removed by surgery, while I consistently maintained that the cyst was not the reason that I was dealing with obstetricians and that I did not want to concern myself with it until after my baby was safely delivered. I was subjected to severe pressure to speak with a psychiatrist about it, which I refused to do.
The cyst was not blocking the birth canal and therefore vaginal delivery was viable, and that is what I wanted. The doctor agreed, but instead of concentrating on the birth, he concentrated on the event that an emergency would be necessitated and therefore returned his attention to the concern with this cyst and how major abdominal surgery would have to take place to deal with the cyst at a time when I would be dealing with a newborn baby.
This went on and on and on and a severe process of coercion resulted from the impasse. I had been assured throughout my prenatal care that the baby was doing very well and that the foetus was larger than average. But now I was told the baby was growth-retarded, that the level of amniotic fluid was dangerously low and that my baby’s life was in danger. This false information justified intolerable pressure and the decision that I should be induced. I didn’t want to be induced because I was educated enough about the practice of induction to fear it.
The intimidation tactics that I experienced were effective. They tormented me with guilt and with fear. I was told that the growth retardation of the baby was related to my inability to totally quit smoking during my pregnancy. They stated that I would be responsible for my baby’s death if I did not make the decision to have an induction. I suspected that the induction would lead to an emergency, and so we went full circle back to the beginning. My position was that I didn’t want to deal with this cyst, and their position was that they couldn’t give me a bikini-line Caesarean should an emergency result because they didn’t want to break the cyst. They felt that the cyst was probably dangerous, had noxious fluids in it, and that if this fluid spilled, it would affect me, it could affect the baby etc. I kept insisting that the cyst wasn’t harming me so far, that the baby was due any day and that I should have the bikini-line Caesarean and find a way of dealing with the cyst afterwards. They alienated my husband’s and my parents’ support by telling them that I was basically being irresponsible and that the baby was in danger.
Finally, under extreme pressure, when I did go to another hospital and had a second opinion, I was told that the baby was fine and the amniotic fluid was fine. To do this, I had to say that I was from out of town and that I was feeling abnormal pressures in my abdomen that concerned me, so as not to allow the other hospital to interfere. But because my husband started to rage and insult me about being paranoid and jeopardizing the life of my baby and because all the nurses were coached to cooperate with begging and pleading and because I couldn’t handle any more at all — I just wanted it to be over; I was extremely traumatized — I agreed to induction.
As I was pushed into the room and while I was being hooked up to the monitor and the induction fluid, I was weeping openly and I kept repeating that I didn’t want to do this. I was left entirely without responsible care in the induction process for three hours in spite of obvious trauma. Only my husband was there and the tension between us was at that point formidable.
When the pain started, it increased rapidly to dramatic degrees. I began to panic because the pain became intolerable in my back but didn’t move to the front where it was supposed to. I was in a lot of anguish and I started to cry out for some kind of pain relief. When the doctor came in, he examined me and discovered that I hadn’t dilated at all after three hours and pain that couldn’t be dealt with any more. Then the nurse who was with him noticed the monitor and started to express extreme alarm, and the next thing I knew I was being told that the baby’s heartbeat had stopped. Booming voices basically announced an emergency and I was rushed into surgery.
We had agreed firmly that should an emergency occur, I would receive local anaesthetic. This was ignored, so I was unconscious throughout it. My husband’s presence was not allowed. During the surgery, a fallopian tube was removed, although the fallopian tube, as far as the medical records state, was not affected. Also, the ovary was removed, which I guess was affected because the cyst was large. And of course the baby was born.
The baby was totally fine. He was not growth-retarded. The paediatrician who examined the baby personally told me later that he was perfect, that nothing was wrong. He was an exceptionally tall baby and his weight was average. He was beautiful and without defect. My condition, however, was the opposite. I was in severe pain regardless of the fact that I was drugged into a state of stupor, and most devastating to me was the fact that the cyst broke anyway, so the surgery had been done in vain. The reason for subjecting me to this abdominal surgery was defeated as the fluid from the cyst had spilled into my internal organs.
Furthermore, I couldn’t be told the results of this, whether the fluid was in fact poisonous and whether I was in danger, for three days because they had to do tests on it. Meanwhile, I was getting all kinds of medication etc.
The nurses started to make observations concerning the care of my baby and didn’t seem to take into account that I was extremely traumatized. They made judgements such as that I didn’t seem to care too much about the baby.
When information arrived about the cyst finally, it was just as I had expected. There was nothing harmful about the cyst. I could have had a perfectly normal delivery that would have resulted in a healthy baby and a healthy mother, but I was defeated, alone, in severe pain, and the consequences to my body traumatized me greatly.
None the less, I was expected to act grateful and happy. When I was honest instead, I was judged as having postnatal depression. This ended up in my being restrained — that is, tied down to my maternity bed with leather straps — assaulted with medication that they normally use for psychotics, although I had no background in psychiatric care, and I was made unconscious.
I’m sorry I’m faltering; this is very upsetting to me.
When I woke up in the psychiatric ward, I was still in restraints and under observation, and my baby wasn’t with me. I believed that I had been brain-damaged, and the cruelty of the environment terrified me into absolutely cooperative silence. It wasn’t until much later, during preparation for a litigation process when I obtained copies of my medical record, that I discovered all the lies that are on my record and that my fallopian tube was removed during surgery.
Ladies and gentlemen, I want to ask that you consider that this case is not only about medical malpractice and unlawful confinement under the Mental Health Act; I think it is about corruption, collusion and sexual abuse. I am here to urge you to consider the definition of “sexual abuse” in Bill 100 as one that must include surgical procedures. The act of having a baby is an engagement of a woman’s sexuality, and a woman’s reproductive system is her sex. Violence done to the sexual system by surgery is not less important than the traditionally understood forms of sexual abuse. It is vital that we take action to have more protection from sexual abuse through surgery, because the damage that results is permanent in the full sense of the word, and the psychological damage can be profoundly debilitating.
When we talk about sexual harassment today, we are sophisticated enough to understand that its meaning is not limited to an explicit act of sexual pressure intended to solicit sexual gratification. Before attention was given to this serious matter in the judicial system, many cases of sexual harassment were trivialized and the victim was silenced by the fact that her complaint was treated more like an embarrassing indiscretion or like gossip rather than a serious allegation worthy of respect and attention.
Because serious attention in the disciplinary bodies is not given to the fact of sexual abuse through surgical procedures, some doctors refuse to even acknowledge that it happens. The so-called feelings of victims are represented as deficiencies, because all a doctor has to do is to present reasonable evidence for his position that he believed he was doing the right thing to defend himself against litigation based on malpractice. Therefore, the experience of the victim who is sexually abused by surgical procedures is represented as being overreactive and, as in previous times with sexual harassment, the victim is put to shame and accused of lacking appreciation for the doctor’s position.
It is highly important that a deterrent be established. Doctors who are conscious of the fact that they can be disciplined for sexual abuse through their surgical procedures would naturally be less confident about taking such liberties.
Since we have finally and rightfully accepted that a woman can be sexually harassed by comments, innuendo etc, how can we ignore that a woman can be sexually offended by surgical procedures performed on her sexual parts? Many women are in fact harassed by doctors to make decisions that they cannot resist because of intimidation. If these women and these doctors would be aware of a definition of sexual abuse that includes surgical procedures, a lot of anguish might be avoided.
The vulnerability of pregnant women to surgical procedures that attack the sexual system must be compensated for openly and fairly. Let us not pretend to a policy of zero tolerance of sexual abuse while this issue is ignored. Let us instead be sincere and recognize that if qualifications are made and gradients of severity are established, the sexual abuse that happens under a knife is the most severe form.
The Vice-Chair: Is there a question at this time? Thank you very much for your presentation. We’ll leave the TV off for a moment.
The Vice-Chair: The next presenter is Joyce Emerson. Would you introduce yourself, please, and proceed with your presentation.
Just a moment, please. Did you wish to speak at this time, Mr White and Mr Owens?
Mr Owens: After the presentation.
The Vice-Chair: Proceed, please.
Ms Joyce Emerson: I am Joyce Emerson. I am a coordinator and a therapist of abused women and incest survivors. I work from the Oshawa YWCA, coordinating the Apple House project. I hurriedly prepared for this meeting when I heard about it. I was very concerned that I wasn’t informed about it ahead of time, as were many of my colleagues. It’s my hope that you will extend the period of this proceeding so that many more of my colleagues can come forward. They’re very concerned about victims’ rights.
I believe each of you have a page, and I’ll add to that as I go.
Sexual victimization of patient-clients by health professionals is a serious abuse of power. An educated professional benefits from ascribed power within a community. Previously abused or victimized persons are especially vulnerable to further exploitation and/or abuse. They depend on the professional to set the boundaries in a relationship based on trust. They assume the power of the professional will be used in a healing and professional manner. As a result of basic trust in what is societally known as a professional mandate to heal, patient-clients are ill equipped to challenge what is proffered by a professional as part of the healing process.
Furthermore, patient-clients may attribute benevolence to subtle or overt messages or actions implying that they hold special status for the professional, even when professional and personal boundaries become blurred. This is the ultimate betrayal of trust. They have depended on the professional to protect them in this relationship of trust, assuming the professional would never exploit them for his or her own purposes.
Furthermore, sexual victimization by health professionals represents a breach of public trust in professional endeavours. The public, the client-patient base of the professional group, lose the ability to determine who will be really therapeutic or helpful to them in that profession. As a result, all professionals are tainted by the actions of certain abusive members of the profession. Public trust can only be restored when immediate, stringent actions are taken to re-establish professional standards.
Our concerns and comments: Based on the abuse of power existent when a health professional sexually abuses a client-patient, we have the following concerns about the changes proposed for Bill 100:
Section 6, section 36 of schedule 2: A concern about the wording of this section is that current research and practice models are inefficient and sometimes incapable of predicting whether an abuser will re-offend. Therefore, in the interests of protecting vulnerable members of the public, who may be unaware of allegations against a professional, it would seem incongruous to reinstate an offending health practitioner. Reinstating a discredited health practitioner would be seen as empowering him or her to re-abuse. Further, the public may interpret reinstatement as collusion among powerful professionals, resulting in a loss of professional integrity.
Subsection 11(3) of the bill: Revoking for certain kinds of sexual abuse needs to be clarified. The action of the professional should not be the only determining factor in the application of penalties; the impact on the patient-client and the degree of breach of trust needs to be given prime importance. In addition, the impact on the public including the devaluing of the profession needs to be included in the decision to revoke.
Section 18 of the bill, section 85.7 of the code: Regarding funding for treating sexually abused patients, the choice of the treatment to be funded needs to be determined by the patient-clients without restrictions or controls by the medical/professional colleges. The patient-client may choose the type of treatment, and if long-term treatment is required, funding needs to be provided for the full duration.
Section 51 of schedule 2: Under “Revoke the member’s certificate of registration if the sexual abuse consisted of, or included, any of the following,” please add “vi. sexually seductive or suggestive behaviours.”
Section 72 of schedule 2, (3)(b): There is the question of how many times can a person re-apply, and should he or she be allowed to re-apply after having a revocation for sexual abuse of a patient?
Section 73 of schedule 2: What are prescribed conditions? If “prescribed conditions” refers to the likelihood of a member re-abusing, the question is how can prediction regarding abuse and re-abuse be made with any certainty? Who determines the degree of certainty? Does an abused client-patient have any say in determining this decision?
I might add, are health practitioners reinstated if they’ve been revoked for other reasons? Any reinstatement needs to be reviewed not only by the member’s peers but also by victims’ services and advocates.
Section 18, schedule 2, section 85: The section on reporting of health professionals seems to ensure a policy of open disclosure among professionals. We laud this section. An open policy about disclosure of sexual abuse supports client-patients in exposing the secret. Support for disclosure by professionals allows those professionals who find such behaviour abhorrent to come forward in safety about transgressions. Furthermore, it re-establishes the credibility of the profession in the view of the public.
I’d like to just explicate that with a little example. I knew of a situation where an abused woman visited her local medical clinic, saw a doctor’s services advertised in the office. It had his name and then it said, “Restricted to psychotherapy, specializing in abused women.” She didn’t understand the “restricted” part, that there might be a problem. When she asked this doctor to help her, he ended up attempting to seduce her. She was very frightened and it caused her to pull back. She was afraid of reaching out to anyone else for help. Upon inquiry, it was discovered this doctor had several complaints against him and had lost his licence to practise medicine, yet he was practising psychotherapy with the other doctors in the office knowing this.
What responsibility did the other doctors in the clinic have to protect the public, their patients? How was this man allowed to practise psychotherapy when he was found inappropriate to practise medicine?
I continue on. Subsection 85.3(6): This section, however, requires caution about the validity of any prediction about the potential for reabuse by the offender. The current ability to accurately and reliably predict reoffending behaviour is unreliable.
Peter Rutter, in Sex in the Forbidden Zone — and I might say this book is very much on topic with this; it discusses abuse of anyone in a position of power with the people under them, whether it be a minister with his parishioners, a teacher with students or a doctor with his patients and so forth — states: “Many men who sexually exploit professional relationships are so-called repeaters who count on the silence of their victims,” and it truly is very difficult for victims to come forward. Therefore, any predictions need to err on the side of protecting future victims and the public to maintain professional credibility. The fundamental injury to each and every victim’s quality of life caused by such abuse must be considered.
Finally, my colleagues ask me to convey to you the need to solicit further input from advocate groups.
Mr Owens: Let me begin by thanking you, Ms Emerson, for appearing this evening. I understand clearly the short period of time you had to prepare your presentation. It’s excellent none the less.
My concern is around the reinstatement of physicians or practitioners who have been found to have abused patients. In your role at Apple House you’ve had much more opportunity to deal with victims of sexual abuse, more than I will ever have. What is your view on the reinstatement of practitioners who are found to have abused?
Ms Emerson: I suppose it’s difficult to generalize. It would depend on the degree of pain to that client, but frequently with women who have been abused — they may have been abused previously — they are potential victims. If they’ve been sexually abused as children, they may be afraid to say no to a doctor. They may not be clear on what their rights are with a health practitioner. They are very afraid of the person in power and of standing up to them, and when they have been reabused, the trauma is very extensive and it takes years to recover, even with a sexual abuse survivor. For instance, if a child goes to her mother and the mother denies that the sexual abuse happened, that is a retrauma. If the child grows up and then is further sexually abused, it’s further trauma. The more it happens, the less likelihood they’re going to live a normal life and they’ll most likely be in therapy a good part of their life.
Mrs O’Neill: I’d like to ask you about the suggestion you have regarding the amendment to section 51. As I look at it myself, and of course I tend to agree with the previous speaker — you no doubt have much more first-hand experience than I — subparagraph viii, I guess it is, seems to include what you have suggested: sexually seductive or suggested behaviours. Could you tell me why you feel another section is needed?
Ms Emerson: Can you indicate which page that is on?
Mrs O’Neill: You mean of the act? It’s page 3 of the act as presented, under “Orders relating to sexual abuse.” As you know, there are at the present eight definitions or statements of what would be included in sexual abuse, and you’re suggesting there should be this ninth one added.
Ms Emerson: I guess that viii was not clear enough. It sounds like a direct sexual action whereas our suggestion for ix would be anything that might lead to that; it might not be an action. I can think of a case myself where I had a doctor who was very unclear about his professional boundaries and in draping me was not professional. He didn’t touch me, but his look, the way he ordered me to keep my hands away while he did the draping — and he lifted my pants and was able to see down my pants while he was doing this — felt sexually seductive. I’m not saying that he should be revoked for that but he certainly deserves some disciplining. That’s not —
Mrs O’Neill: So even in your definition and even with an example, it’s pretty hard to define exactly what you mean. When you began, I thought you were going to talk about words as well.
Ms Emerson: Yes, it could be a verbal message that’s seductive too.
Mrs O’Neill: In your addition, do you see an ability for that ninth to be a very personal interpretation?
Ms Emerson: Yes, perhaps it would have to be clarified.
Mrs O’Neill: It might be helpful, if you feel there is something left out, to try and be somewhat more specific, because this is an act that’s going to affect the entire province, and your experience may have to be defined a little more closely.
Ms Emerson: If I could think about that, I’ll submit it to Mr Owens.
Mrs O’Neill: We would appreciate you presenting it to us if you think there’s something that has been left out of that list.
The Vice-Chair: Mr Wessenger has requested a clarification.
Mr Wessenger: I’d just like to clarify that section 51 has been amended to delete items vi, vii, and viii from that list, so it’s really only i to v that are still in the bill. It should also, I think, be pointed out that those are acts where there’s a mandatory revocation for a five-year period.
Ms Emerson: So do vi to viii result in anything?
Mr Wessenger: They have been deleted, and for the other aspects you’d have to look at the definition of “sexual abuse.” I forgot which section it is where it refers to the “sexual relations” definition. These are the specified acts that would result in a mandatory revocation. The other descriptions are sexual touching, which are not a mandatory revocation.
Mrs O’Neill: I think the difficulty is that many of the presenters don’t have the amendments. The amendments haven’t been debated. The government has presented them and of course therefore presumes it’s happened, which I guess it may do, but the general public, in many cases, doesn’t see it that way. I think it is helpful if the presenters are made aware that there have been amendments presented, and if they want them, I think the clerk should give them to the presenters.
The Vice-Chair: That would be helpful. Thank you.
Mr Drummond White (Durham Centre): Thank you, Ms Emerson. Certainly, in the many years I worked as a social worker in Whitby with family counselling there I used Apple House on many occasions, and of course the Y and Higgins House before that.
I think you bring up a number of important issues. The behaviour within the context, for example, of dealing with someone who has been victimized is much graver than with someone who is not so vulnerable. I want to pick up on a couple of those points. Frankly, I quite agree with you that this is important — not the act alone; it’s the context of the act, those physicians who are working with women who have been physically abused, and as we both know, many of those women have also been sexually molested or abused as well.
At the moment, in regard to your feelings about professionals who are working with women who have been victimized, the social workers, the counsellors like yourself, should we not also be accountable?
Ms Emerson: Yes.
Mr White: Should we not also be regulated to protect those very people?
Ms Emerson: I guess it depends on what you mean by “regulated.” Yes, I believe that we are all accountable and I would hope that we would all be made to act in a professional manner. I have only a BA; I don’t have an MSW or a PhD. But I conduct myself in a professional manner. My clients are not my friends; they expect me to be their counsellor, and that’s what I give them.
Mr White: So you should be accountable in terms of your ethics?
Ms Emerson: Yes.
Mr White: Any health professional should be?
Ms Emerson: Yes. As a matter of fact, Mr White, in Durham region we have a wife abuse protocol that is being established. I believe many communities are establishing this. I am part of that. Victims are coming forward and have formed a group to make us accountable to them. They are saying, “We want agencies to be accountable to us.” I think the government needs to be accountable to these victims too.
Mr White: Similarly, Ms Emerson, if you were to make a statement from your knowledge of a client who has been abused, you would want to have the same protection when you make that statement as any health professional. You would like to be able to be free of libel charges, as any health professional would be, right?
Ms Emerson: I suppose; it’s not something I’ve worried a lot about.
Mrs Dianne Cunningham (London North): Thank you very much for your presentation. Just to follow up on what Ms O’Neill said, it’s very difficult, as you know, for the public to give us good advice when they can’t even get the amendments. But if you could, I would appreciate it if you would look at the definition of sexual abuse of a patient, because I think the proposed amendment might be something that you would support. I think it has described what you’ve stated, and I would be most interested in hearing back from you if you can call my office. I think the clerk may have handed the proposed amendments to you tonight, did he?
Ms Emerson: Yes.
Mrs Cunningham: Okay. You would be most helpful in getting this to us quickly. As you know, the time frame is so short; we don’t approve of it, but it happens to be what happened. It would be most important to get front-line persons such as yourself to give us your best advice.
Ms Emerson: Thank you. I will consult with other colleagues.
Mrs Cunningham: It would be great. I think it would be fair, Mr Chairman, if you could advise us. Is it Monday evening that we’re doing our last public hearings, and Tuesday clause-by-clause?
The Vice-Chair: That’s my understanding, yes. That’s correct.
Mrs Cunningham: If you could get it to us before the weekend, it would be really great.
Ms Emerson: I’ll see what I can do.
Mrs Cunningham: It’s hard to get colleagues together on short notice. We would appreciate looking at it. You’ve been most helpful. I’ve enjoyed your presentation, as we have others this evening, but your clauses are very specific. Your wording is helpful.
Mrs O’Neill: Mr Chairman, because Ms Emerson said she has colleagues that she’s communicating with, I think it’s important for you to know that this bill is slated for debate for Thursday, December 9, for third reading, so that would be the date upon which the bill would be receiving the approval of the Legislature.
Mrs Haslam: I wanted to touch briefly on mandatory reporting. Do you believe that there should be mandatory reporting for behaviour and remarks — I’ll give it to you in a two-phase area, so that you can answer quickly and others can go on — and should any professional under the RHPA be exempt?
Ms Emerson: I don’t know what the RHPA is.
Mrs Haslam: I’m sorry, any professional covered under the Regulated Health Professions Act. Let’s just say any professional: psychiatrists, psychologists, massage, dentists, doctors, psychotherapists. Should there be any exemptions? Do you feel that any of those professions should be exempted from it, and do you think there should be mandatory reporting of behaviour and remarks?
Ms Emerson: I cannot see an exemption. Of course, in massage, people would touch parts of our body, but there are definite ways they touch that are professional rather than sexual. I cannot see any exemptions in my knowledge, and I would think mandatory reporting is a great step forward.
The Vice-Chair: Thank you for your presentation.
The Vice-Chair: The next presenter is Irene Crews. Is Irene present? How do you do. Have a chair. Would you introduce yourself and proceed with your presentation, please.
Ms Irene Crews: I am a member of Survivors of Medical Abuse. Three and a half years ago, I was assaulted by a doctor. The doctor had lost a patient after he performed liposuction on her. He is still out there operating on women and putting money in his pocket.
In 1989, I went to see this doctor for a reason other than having cosmetic surgery. It was not an ordinary consultation. Part of what he did was to pull a stool up right close to me so he was straddling my knees, so my knees were about a quarter of an inch from his groin. He put his face right up near mine and talked on and on for about 20 or 30 minutes, telling me what an excellent surgeon he was and convincing me to have cosmetic surgery. The position caused a stressful situation for me, because if I moved even slightly, I would have touched him in his private parts. He talks with an accent, so I had to concentrate very hard to understand him, and at the same time, he made frequent contact by touching or patting my hand or arm. This happened on three occasions, and what I’m talking about is hypnotic induction. I wrote down this and submitted it to the college of physicians long before anything came out on the news about hypnosis and doctors.
That was in the spring. In the fall, it came out on the news about the liposuction death. That is when I went back and had the facelift. I believe he had left a suggestion in my mind, and when I read about him in the news, I followed up on it. The surgery itself was bizarre. It was extremely traumatic. The anaesthetic kept wearing off and I would have to ask for more. They would give me more and I would calm down, and then it would wear off again and I would become upset and agitated again. I was traumatized by it.
Part of the operation was a chin implant. When the first of the bandages came off, there was a big lump underneath my chin, which was the implant falling out, and it was infected. After the bandages came off, my friends told me there was no difference in my face from before the surgery. I have no dispute that he performed the surgery; I saw him there operating for three hours or so.
The first time I confronted him, I had to hug him before I could leave his office. The next time I confronted him, I showed him pictures taken the day before surgery. He was again using the hypnotic technique, trying to convince me he had done an excellent job of surgery. I decided I did not have to sit there for yet another 20 or 30 minutes and listen to him. I got up to leave quite calmly, saying, “I am going home now and I will see you at your clinic on Monday.” That is when he grabbed me. He put his arms around me and I was restrained from walking out of his office. I said things like, “I am going to scream,” but he would not let go. At another time, he held my two arms together like this, and at another point, he stood in front of the door and barred it so I could not get out. It happened that I had a friend in the waiting room, because we were going to lunch after my appointment.
I filed a complaint with the College of Physicians and Surgeons. I did not have a hearing. They did not find sufficient evidence of assault. They did not address my complaint of no difference in my face. They did admonish him for unprofessional behaviour, like, “Slap, slap, naughty doctor for being unprofessional with Mrs Crews.” He is still out there operating on women and sticking money in his pocket, while I have had major depression and I have pain every day of my life which I did not have before.
There was a blatant lie in his letter of defence. In my written submission I described how his wife-secretary had come into the office only once, near the beginning of my appointment. I was in there for about an hour. He said I became upset, and he buzzed her and she came in and sat down and tried to calm me down and handed me a Kleenex. The assault happened near the end of my appointment. There were only two people in a small waiting room, my friend and his wife. He could not have buzzed her and she have left the waiting room without my friend seeing her, and my friend had already given her evidence.
My allegations about hypnosis were very serious, because it may be that the woman who died following the liposuction did not want the surgery either, and he may have used the same procedure to convince her. Why did the college not get his files and interview other patients? I cannot be the only person who had that experience.
My complaint also involves sexual violation, because of the intimate contact and having to hug him before I could leave his office.
I appealed the decision to the Health Disciplines Board, and after waiting a year to get a hearing, I contacted a community agency for help, the Toronto Rape Crisis Centre, who were able to get a hearing set up, and that was last week. At that time, I caught him up in several lies.
For starting a lawsuit, a lawyer requires a $20,000 retainer. I do not have money like that. I lost my business since the assault and have had to use up savings. Even if I were eligible for legal aid, I would have a lien put on my house, and at my age I can’t take a risk like that. Besides, chances of winning a malpractice suit are slim.
In addition to that, we saw a film in sociology class at George Brown College entitled Medical Aggression. A survey showed that in Sweden, where physicians are on salary, in 10,000 people, there were 17 hysterectomies performed. In Canada, where doctors are paid per operation, in the same number of people, there were way over 100 hysterectomies. It was the same with tonsils, gall bladder and other organs. If doctors are being paid per operation, there are many more performed.
Medicine is the leading profession in Canada, yet incompetence is high, and then the college of physicians covers up.
My recommendations, and these are for other than just Bill 100:
(1) Put through Bill 100 in its entirety.
(2) Take the responsibility for discipline away from the College of Physicians and Surgeons.
(3) Change the legislation around lawsuits so lawyers can take the risk and take a percentage of the award for damages if there is one.
(4) Look at dismantling the OHIP system as it now stands. Let people still have free medical care, but put doctors on salary and put a ceiling on it at a reasonable amount. Then channel the money saved into hospitals so people will not have to be turned away. There is plenty of money around, but it is going into physicians’ pockets rather than being used for the people.
The Vice-Chair: Thank you for your presentation. Are there any questions at this time?
Ms Haeck: I take it from your comment that you would like to see Bill 100 passed in its entirety, that you would agree, in whole heart, with the mandatory reporting aspect.
Ms Crews: Wholeheartedly.
Ms Haeck: Very good. I just wanted to make sure that there was no guesswork involved in here, because it’s definitely something that, on behalf of the victims, I do support.
Ms Crews: Yes, thank you.
The Vice-Chair: Any other questions? Thank you for your presentation.
ONTARIO DENTAL HYGIENISTS’ ASSOCIATION
The Vice-Chair: The next presentation is by the Ontario Dental Hygienists’ Association. There’s been a handout, I believe. We have a letter from the Ontario Dental Hygienists’ Association addressed to the clerk of the social development committee:
“The Ontario Dental Hygienists’ Association wants to thank the standing committee for making time available for us to present regarding Bill 100.
“Please have read into the record, in the time slot that would have been available to us, that the Ontario Dental Hygienists’ Association has already submitted a written presentation which we trust will be duly considered by the standing committee. We are pleased that more time has been made available for discussion on Bill 100 even though we will not be attending in person.
“Again, thank you for contacting us.
“Elizabeth Craig, Executive Director.”
ONTARIO ASSOCIATION OF MEDICAL RADIATION TECHNOLOGISTS
The Vice-Chair: The next presentation will be by representatives of the Ontario Association of Medical Radiation Technologists. Good evening. Please be seated, introduce yourselves and proceed with the presentation.
Ms Haeck: On a point of order, Mr Chair: On one of our lists, we have a Catherine Eckler listed at 7:15.
The Vice-Chair: That’s not on my list.
Ms Haeck: Maybe it was an older list, I don’t know.
Mrs Haslam: It’s the last one I have.
Ms Haeck: Thank you.
The Vice-Chair: Oh, is it cleared up?
Ms Haeck: Yes, we’re fine now. She had an extra one.
The Vice-Chair: I see. Thank you. Please proceed.
Mr Robin Hesler: My name is Robin Hesler, executive director of the Ontario Association of Medical Radiation Technologists, a predominantly female profession. Prior to taking on this position, I was a practising medical radiation technologist in the discipline of radiological technology.
With me this evening is Roberta McCammond, our immediate past president and a practising radiation therapist.
The practice of our profession, like many others, involves the use of our major senses, particularly touch. As a result, our members are in an exposed climate and thus vulnerable. Bill 100, then, is of great interest to us.
We have been pleased to be a part of this historic process. The interaction with victims, survivors, sister associations, governing bodies and the government has given us an acute awareness on the issue of sexual abuse and broadened our respect and understanding on this matter. It indeed has been a truly educational experience, which I state in the most positive sense.
Mr Chairman, we thank you and the committee for this opportunity to appear before you this evening.
We have been a member of the Ad Hoc Coalition of Regulated Healthcare Associations on Bill 100 since its formation. We sit before you as a strong supportive voice to the views they have already so eloquently articulated to you regarding the issues around Bill 100. We are not here, however, to restate those arguments in general or in detail, except for two.
Before I address those matters, I would like to state that the association recognizes and supports the objectives underpinning Bill 100. We recognize that society as a whole and government in particular have an obligation to deal with the issue of sexual abuse with the connotations, perceptions and realities that this term may conjure up. It is because of this recognition and our awareness that we asked to meet with you tonight.
In our position paper to the government on Bill 100, we raised the issue that, although well intended, this legislation appears to be restrictive, discriminatory and a gateway to potential problems as time goes on. Bill 100, in our view, is restrictive in scope and discriminates against the health care professional, the survivor and the victim, and it could be a barrier to practice.
We have come to perceive that in its haste to act to stop sexual abuse because of the highly publicized incidents, the government of Ontario has unwittingly compromised its own principles of fairness and equity. This strong desire to stamp out the problem set into motion a patchwork process, a quick fix, if you will, by grafting more legislation on to the RHPA. This legislative minor surgery, however, does not and will not heal the gaping wound of sexual abuse in our great province. Major surgery is required through new legislation to begin to heal those wounds and to act as a preventive care tool.
Focusing only on health care professionals is seen to be, by our members, discriminatory, unfair and unreasonable. Sexual abuse is a problem in other sectors of our society. Most health care professionals act professionally. We do not have to look far to see that sexual abuse prevention should not be just focused on health care professionals alone. If we shift our vision to the unregulated health care providers, there are many who share the characteristics of authority, power and trust.
As an example, our association has only to glance over to a related health care provider group, ultrasonographers, or sonographers, as they are often called. The practice of this medical occupation requires extensive risk management techniques and the use of hands-on techniques as well. The impact of the insertion of probes, called transducers, into various orifices of the body provides a sensitive environment for the patient and the sonographer. The nature of the work provides a potential for sexual abuse. This occupation is not subject to RHPA and therefore not subject to Bill 100. Is this fair? We think not.
Ultrasound is only one example, and we use it because some of our members practise both medical radiation technologies, a regulated practice, and ultrasound, the unregulated practice. These members are having difficulty understanding the logic of Bill 100 affecting them in one part of the day but not in another part of the day. We feel this makes the issue of mandatory reporting an interesting one. We are aware that this unregulated health care provider group is only one of many examples which the coalition has noted already.
Sexual abuse occurs throughout our society wherever power relationships and other causes manifest. Then why should health care professionals be unfairly singled out? Why are we being singled out as the bad ones? It is on this basis that we suggest standalone legislation to address sexual abuse within the province of Ontario.
We believe the government of Ontario has a wonderful, unprecedented opportunity of historic proportion to devise innovative model legislation concerning global sexual abuse and produce truly great legislation. We believe that Bill 100 has provided the base for such new legislation, as well as the reference to draft regulations under RHPA concerning the sexual abuse provisions of that legislation.
We believe that in addressing standalone legislation, it will provide the government with the opportunity to address the anomalies and problems that others before us have presented to you which otherwise might be difficult to accomplish in Bill 100. One of those areas is the therapy and counselling fund. We are a profession where incomes are modest and shrinking in today’s fiscal realities. We are a profession whose demands on it are great and, due to cutbacks, are becoming even greater. We have already witnessed in radiation therapy the problems of the shortage of therapists. This was temporarily solved by hiring from out of country.
The compensation fund, the way it is being proposed, could be the straw that breaks the camel’s back for our profession. With the spectre of this added to an already stressed health professional group, we could be facing a major shortfall as our members leave the profession and we cannot attract young citizens of this province to enter our undergraduate programs for fear of the barriers before them. We could be jeopardizing and undermining health care in the long term. Do we want more stress, which then translates into possible sexual assault or abuse in the rest of our society? Could this well-meaning legislation be doing this? We believe the possibility for this is excellent.
What we need is comprehensive, all-encompassing legislation addressing sexual abuse on a macro-scale. What we need is a balanced approach which ensures the democratic principles of equity, justice and fairness, as well as accountability. What we wish to avoid is the potential to corrode the purpose and effectiveness of the RHPA. What we wish to see happen is the respect of the rights of all citizens of this great province.
If you tell us that standalone legislation is not possible and ask whether we could live with Bill 100, we would say yes, on the proviso that those recommendations that the Ad Hoc Coalition of Regulated Healthcare Associations on Bill 100 put before you are actioned. As it stands, it is a piece of legislation well intended but substantially flawed and poised for legal challenges and therefore potentially costly to our fragile economy and societal health.
Mr Chairman, this concludes our presentation. I’d like to thank you again for this opportunity to appear before you, and especially for your time.
Ms Haeck: Thank you. I appreciate your remarks. You have some strong convictions here, and I have to admit I have some as well on this particular issue on behalf of the victims and the survivors.
I am concerned about your comment on page 4 in particular, where you indicate that you perceive there’s some sort of haste in this whole procedure.
I did have the privilege of sitting on the regulated health professions hearings which occurred during the summer and fall of 1991, and during that period Marilou McPhedran made her presentation of her report, in November 1991. We are now almost at December 1993. In our briefing package, which I’m sorry you don’t have, there is a chronology of events as well as a range of things here.
My question is that through this whole process, knowing that this was part and parcel of the Regulated Health Professions Act — it was flagged at that time in November 1991, placeholders being put there for all of the professions — and there having been two years that have elapsed through this whole process, I am somewhat concerned about the word “haste.” I’m just wondering what kind of consultation you have participated in over that period to bring forward your particular view.
Mr Hesler: To answer the last part of your question, we have been involved with the government in the opportunity to present the brief. We’ve been involved with all the coalition meetings that were mentioned in its brief. We’ve also been involved with the meetings that the professional relations branch set up with the victims and survivors. So we have attended all those meetings.
What we’re alluding to there in terms of haste with this is that when the College of Physicians and Surgeons’ report came out, things seemed to be set in motion very quickly as to exactly what was going to happen with Bill 100. It’s our perception anyway that there is such a strong desire to get this legislation through within a particular time frame that perhaps it is not giving enough time for the seriousness of this legislation in order to really take a very good, close look at it.
We’ve always been under the perception that we have to meet a particular deadline, which is December 31, or there will be problems with the legislation. We’ve gotten things from the professional relations branch and the “respond to this now, respond to this now, respond to this now” has given us that perception.
Ms Haeck: You mean that in two years’ time you don’t feel some of your concerns might have been allayed? There are a fair number of survivors of sexual abuse by medical practitioners sitting in the audience, and they are obviously very concerned that this would be prolonged even further. How do you address the very real concerns on behalf of the ladies who are sitting behind you?
Mr Hesler: All we’re concerned about is that those concerns are addressed and that any attempt to speed the process up may in fact not do that process justice. That’s all we were concerned about.
Ms Haeck: As someone who is a government member, the fact is that their concerns have been, to some degree at least — I get a sense from a number of the presentations I’ve heard over the last few days that they feel this should have happened some time ago and that we’ve taken a bit long in getting to this point.
Mrs O’Neill: Thank you for your presentation. I too feel somewhat rushed in this, in that the legislation is before us now. There’s been a lot of consultation, but I always find in opposition that all this consultation goes on, but when the legislation comes there is quite a hurry, and that’s not just with this bill.
I haven’t had a lot of opportunity to be into this area of any hospital, but the ultrasonographers and the radiation technologists sometimes are very much side by side in the environments I’ve been in. I’m just wondering if either the parliamentary assistant or our legal people would be able to tell us just what the obligations would be when you have people side by side, day by day, and one’s regulated and one’s not. What kind of obligation is there vis-à-vis these individuals?
Mr Wessenger: This legislation only applies to regulated health professions and does not apply to the unregulated health professions. If one wanted to have some legislation applying to unregulated professions, I think there would be a great difficulty in trying to have an enforcement procedure at this stage.
Mrs O’Neill: Well, I must say this one would be an extreme contradiction in the mind of a patient, because these people literally are shoulder to shoulder in the two or three environments that I know, and to feel that one would not be able to transfer some kind of obligation between these two individuals or to establish the credibility of one and not the other is very, very difficult for the average person on the street to understand.
Mr Wessenger: I think it should be understood that there are other courses. For instance, a situation of abuse could be reported to a hospital administrator with respect to one of the unregulated professions.
The Vice-Chair: Did you wish to respond?
Mr Hesler: I just wanted to add a clarification to that. Often we’re finding too it is the same person. The person will be doing X-rays part of the day, and then the person is doing ultrasound another part of the day. With the changes in the health care system going on, that likelihood to utilize people more is more than likely going to increase.
Ms Haslam: I was going to follow up on the idea of standalone legislation. I can see your concern about connecting this bill to the RHPA. I’m sure you’ll note, however, that this bill does rely on the disciplinary mechanisms within the RHPA. Does your recommendation for standalone legislation mean that such legislation would simply repeat what’s in the RHPA, or are you suggesting that we start all over again with a new and different approach to the problem of sexual abuse by the regulated health care professionals? My concern obviously would be delay in the legislation.
Mr Hesler: Yes, and that’s our concern too. As far as the RHPA is concerned, I think it is very important that the accountability and responsibility are placed there. How that’s done, through regulations or something, using Bill 100 as the base, I think would be very important to do.
We honestly think it’s very, very important to look at the whole global picture here and maybe step back and say, “Yes, there is a requirement out there for the unregulated professions and professionals as whole within society, and how do you do that and how do you make them accountable?” I don’t know.
Mrs Haslam: Could we then say this is a good first step —
Mr Hesler: Yes.
Mrs Haslam: — and there obviously is an area where unregulated health professionals have to have some sort of code of conduct also, but as a first step this legislation is where you want to be, tied to RHPA?
Mr Hesler: Yes, we would accept that as a good first step.
Mrs Haslam: Thank you.
The Vice-Chair: Thank you. Mrs Cunningham.
Mrs Cunningham: That’s fine. I was seeking further clarification, as Mrs Haslam was, so that’s fine.
I share your concern with regard to timing. I am wondering if you have had a chance to take a look at the definition of “sexual abuse of patient,” the new proposed definition which takes into consideration — actually it’s clause (c) — where we are looking actually at the “behaviour or remarks of a sexual nature.” I think that will probably meet the concerns of many of the witnesses who have come this evening. Have you had a chance to look at that?
Mr Hesler: No.
Mrs Cunningham: Again, I think this is a group of people who work in a medical environment who could probably assist us in that regard.
I share your concerns about this not being more global. I know some of you work in intensive care units and what not, where these kinds of things are happening. As you’ve described, part of your day is as one profession and the other is another and it’s pretty hard to switch gears. But I would like to hear your opinion on the new wording if you get a chance to look at.
Mr Hesler: Okay. Thank you.
The Vice-Chair: We’ll do that for your suggestion and we’ll have the clerk do that. Mrs Haslam, did you have another point?
Mrs Haslam: I wondered if I could get some clarification. The comment was that there was a worry about the compensation fund. It was my understanding that the compensation fund was prorated and it looked at the number of cases over two years. If there were no cases, then the input from a profession was a mere $10,000. Am I correct in that?
Mr Wessenger: I think the clarification is that if there are no previous cases the requirement is that there be $10,000.
Mrs Haslam: As a minimum.
Mr Wessenger: Yes, as a minimum.
Mrs Haslam: Right, okay. Because there was some concern in this brief about the compensation fund. I wanted to be very clear on that.
The Vice-Chair: Thank you for your presentation.
Mr Hesler: Thank you very much.
NATIONAL ASSOCIATION OF WOMEN AND THE LAW
The Vice-Chair: The next presentation is by a representative of the National Association of Women and the Law. Would you introduce yourself, please, and proceed with your presentation after you’re seated.
Ms Nicole Tellier: Good evening. My name is Nicole Tellier. I’m delighted to be here. I’m delighted that a government has decided to take some positive and fairly strong steps to deal with what is clearly a very pervasive problem in our society.
I’m a little disappointed in the lack of time to present, so I will either not get to all of the recommendations that are before you in a brief, or talk quickly, or both.
The National Association of Women and the Law is a national non-profit organization. We’ve done a lot of work in this area and appear frequently before committees such as this and in Ottawa.
I am a practising lawyer and have a large practice involving civil litigation and sexual harassment cases where my clients are victims of sexual assault, so hopefully I can bring to bear on the recommendations of my organization some personal perspective and experience.
At the outset I’d like to say that I think the committee, and I do think it’s represented in the bill, must be extremely mindful of the fact that sexual assault is a gendered problem, that it occurs when people are in positions of power. Virtually every task force or commission or study that has been done repeatedly reveals that men are perpetrating assaults upon women, by and large.
I think that basic principle should inform the legislation, and so we have actually set out some proposals which suggest this bill doesn’t go far enough, that some of the important ingredients that were in the original task force report do not find themselves in the bill. I will highlight them for you.
We have 12 recommendations which are summarized in the first two pages of the brief. I think that they could probably be summarized from a thematic perspective in this way:
First, we would like to see the bill strengthened through a preamble that does acknowledge the power and gender construction of sexual assault.
We’d like to see an increased participation of victims in the disciplinary process, both in terms of procedure and substantively.
We would like to see an expanded definition of the kind of abusive conduct that would be captured by the legislation and an expanded definition of those who are potentially named as victims.
We would like to see improvements to the compensatory scheme that is proposed in the bill.
Finally we are ad idem with the bill as it now exists and the suggestions by the task force that there should be no watering down whatsoever with respect to the principle of mandatory reporting. This is critical if professions, whether they be health professions, lawyers or others, continue to enjoy the privilege of self-regulation. We have lots of recent examples, the most recent perhaps in the judiciary, my profession, which show us this is absolutely necessary.
We think that a preamble is important because, as lawyers, a preamble can be used to breathe life and strength in other parts of a piece of legislation if there is any doubt as to what it means. We want to see the preamble used in that way as an interpretative tool, which is how preambles are used. But we’d also like to see it used to build on the notion that sexual assault stems from the context I described earlier, one where there’s an imbalance of power and one where the interests of men and women are diverse and there is a gender issue.
We think that a preamble would achieve those goals and have set out in draft legislation a possible preamble. In each one of our recommendations we have actually provided you with draft legislation and we hope that will be useful and you’ll actually give it careful consideration.
The second recommendation relates to the definition of “sexual abuse.” As is typical, there seems to be, when defining this problem, a preoccupation with sexual intercourse. It actually appears as the first descriptive word of sexual abuse. In doing so, it conjures up a very narrow construction of what sexual abuse is all about. We prefer the concept of sexual penetration, which would capture not only body parts being inserted in different orifices, but things such as objects. This is consistent with proposals we have made to amend the Criminal Code.
We also recommend that the reference to sexual relations be deleted. It connotes mutuality in that there is an ongoing sexual relationship, when in fact there is non-consensual physical contact. We think the choice of these words is pretty critical.
Finally, we are glad to see that behaviour or remarks are included, and we have suggested a slight change to clause 3(3)(c), which would refer to sexual harassment. Again, I won’t go into it. It will refer you to the text. I think it’s critical that mandatory reporting be preserved for this subsection. In my view and in the view of our organization, any sexual commentary or behaviour or remarks are completely unacceptable in the context of a professional relationship. What may be considered humour by some is offensive to others. We must make sure that we don’t trivialize those kinds of situations which create a completely untherapeutic and hostile environment.
We would like to ensure that when determining what is of a sexual nature, the perspective is victim-driven and in particular gender-specific. We have seen from many difficulties in the Criminal Code and other situations that what seems reasonable to a man is not reasonable to a woman. This has been recognized by the Supreme Court of Canada in a number of cases. Lavallee comes to mind and others that are referred to in the brief.
Hence, we are recommending that the legislation adopt a legal perspective and standard which has a subjective and objective component, that it is gender-specific and victim-driven and that it is a reasonable man or reasonable woman test.
We’d also like to see an expansion in the definition of “patient.” It’s our view that sometimes therapy can be terminated precisely to engage in a sexual relationship or that shortly after therapy has been terminated there is still a vulnerability that must be addressed and protected. Therefore, we would like to see the definition of “patient” expanded to include “former patient.” Again, there is a language provided to you for your assistance.
An important component to our recommendations, as I said earlier, was a more meaningful participation in the disciplinary procedure on behalf of victims. We would like to see a mandatory right to full party standing in all cases. In our view, every victim or survivor of sexual abuse at the hands of a health care professional has a genuine interest that frequently parts company with the public interest or the interest of the particular college, and you will get better results in law if all interests have an opportunity to be voiced and considered and addressed.
If such standing is to have any meaning whatsoever, it is critical that funding be made available. I realize it’s beyond the mandate of this committee to consider reforms to the Ontario Legal Aid Act. At present, there is discretion to provide counsel fees for some disciplinary hearings.
I would like to see, and it’s NAWL’s recommendation, that the burden be borne by the colleges. I’m sure this will be considered to be contentious. It’s contentious enough that we are asking the colleges to bear the burden of compensation. However, it’s our view that it makes most sense to distribute the costs of legal representation among the health care professionals who wish to continue to enjoy the privilege of self-regulation, rather than the individual.
We are already spending millions of dollars through other benefits available to survivors, because we are dealing with a Band-Aid solution rather than upfront problems. We see legal representation acting as a way to improve the process and to bolster both the specific and general deterrent effect that this legislation clearly hopes to have.
We suggest that the college itself provide not only payment for counsel but that survivors have counsel of their choice. All too frequently victims in the disciplinary process are assigned counsel who are insensitive, who do not represent their interests and act in the public interest, which can sometimes unfortunately be at direct odds with the victim.
I believe I’ve made sufficient commentary on mandatory reporting. It should not be diluted or amended in any way, in our view. It is one of the cornerstones of this piece of legislation.
In terms of the actual compensatory scheme, we would like to suggest that some of the principles and procedures that are currently available under the Compensation for Victims of Crime Act be a model for this compensation. First of all, the kinds of things that compensation can be provided for should be expanded and not restricted to therapy. It should be clear that compensation for therapy that is incurred up to the time of the hearing is covered. We recommend that you look at considering a discretionary application for interim compensation, which is currently unavailable under that compensatory scheme here in Ontario, and finally, that the costs of therapy not be restricted to certain kinds of therapists. I’m not suggesting there be no minimum qualifications, but we wish to avoid a situation where counsel is dictated, the therapist is dictated and basically the victim once again does not have control over what is critical: (a) her representation and (b) her healing.
We have suggested a creative way which might assist in the burdens that would be created to various bodies by virtue of requiring them to fund the compensation scheme, and that is to amend Bill 100 such that sexual abuse could constitute not only professional misconduct but incompetence under section 52 of the act.
We would like to see this as a matter of principle, we would like to see it because it means there would be an incapacity to continue to practise immediately pending appeal and therefore it provides more protection and, finally, if we use this characterization of the misconduct, it seems quite possible that the insurer may be able to cover the compensation.
Since I’m sure you all have questions and I’ve rushed through this in what I hope is within my allotted time, I’ll end there and open the floor to whatever questions you may have.
The Vice-Chair: Thank you. We have time for one question because of the shortage of time.
Ms Haeck: Thank you very much for a thought-provoking presentation. As you probably can imagine, and you have alluded to it, there is considerable debate about whether or not the colleges should really be bearing the brunt of the funding, as in your point 10. There has been a suggestion in fact that it should be government-funded. What would your reaction be to that?
Ms Tellier: I think as a basic principle, the compensatory scheme should be spread among society rather than borne by the individual, which is the current problem. I do think, however, that to achieve a deterrent effect, it might be more meaningful at the moment to have those who are committing the assaults be directly responsible to themselves.
I think it’s consistent with the requirement of mandatory reporting that if a body is to be self-governing, each member of that body should be contributing to the welfare of those to whom it delivers professional health services and should be vigilant about its coworkers. We have not given that a great deal of thought. I wouldn’t exclude that as a possibility entirely.
I would like to see some, for lack of a better word, punitive component, if there are particular health professionals, and I suspect this is borne out by the statistics and I suspect we all know who they are. If they are doctors and they are in the position to pay the most, then they should do so.
Ms Haeck: Thank you. I’ll allow someone else to ask some questions.
The Vice-Chair: Thank you. Ms Cunningham.
Mrs Cunningham: I’ve really enjoyed the presentation, but I’m very frustrated because it’s going to take me some time now to cross-reference this with the most up-to-date recommendations for change. I’m wondering if you have even seen them, the last group of government amendments. Is this brief referring to the more recent government amendments or the original bill?
Ms Tellier: It’s referring to the original bill that had its first reading on November 25, but we were aware of some proposals. So I was aware of the amendments to the definitions section, and we go further than that.
Mrs Cunningham: Okay.
Ms Tellier: I hope I haven’t confused you with the numbering.
Mrs Cunningham: No.
Ms Tellier: There is also a suggestion or proposal on the table, I think, to minimize the powers of counsel, which is not in the original bill, and I’ve actually addressed that as well.
Mrs Cunningham: Yes, I saw that. We’ll give it some time, but I guess my question now would be to the parliamentary assistant. My great concern from the very beginning, from a couple of weeks ago when I realized this was going to happen, and with the same kind of pressure as everyone else wanting some action to be taken, is that I’m wondering how many times we’re going to have to look at this again and make some of the changes you’ve recommended that aren’t here now, either by recommendation of the committee for regulations or process or something, some of the things that you’ve given us some ideas about.
I suppose my question ought to be, to the parliamentary assistant, what is going to happen with some of these far-reaching recommendations? If we’ve got 15 minutes for every presenter, when do we have an opportunity? Surely not in committee of the whole. Clause-by-clause, I think, is scheduled for one afternoon and evening. Is that correct?
The Vice-Chair: That’s my understanding.
Mrs Cunningham: If we take the time to do the work, which some of us are prepared to do if we think someone’s going to be seriously listening, is the government going to be taking a look at some of the recommendations that we’ve had this evening and coming back to us with more proposed changes? Would that be the best way to do it? Or do you want us to do the work as well? Often I find that if we do the work, we don’t have any recognition for it; the government’s made up its mind ahead of time.
In this instance I think there’s probably been some work with the government done. I’m not sure I’m correct in that regard, but my feeling is there’s an amount of expertise here that we should be tapping. Could I have Mr Wessenger tell us what he thinks the process will be?
Mr Wessenger: First of all, I think there should be some clarification with respect to the amendments that have been submitted. I understand that these amendments had all been gone over with the stakeholders back in August, so there was consultation.
Ms Christine Henderson: And October.
Mr Wessenger: August and again in October. So in fact there has been consultation with respect to the proposed amendments.
I think it’s also been made clear in the statements that have been made about one future amendment that is going to be submitted for consideration by the government, the one additional one — I don’t know of any others at this time, but one additional one relating to the category of sexual abuse of a behavioural or verbal manner — that there’s going to be a provision for the colleges to look at some form of assessment and remediation.
Ms Tellier: Could I just comment on that? I think process is very important, as someone whose consultation is sought. I did have the opportunity to consult with the Ministry of Health and was grateful for that, and I was provided with these amendments. But I think the question that’s in part being raised by the honourable member Cunningham is that we who come here to present have no sense whether our recommendations, which you have not seen before — we’ve seen your position — are really going to be given any meaningful consideration.
Mrs Cunningham: That’s the point. I’m not trying to be controversial, but I could spend a lot of time with four or five of the presenters tonight and come forward with the amendments, which will take a lot of hours, which I’ve done before, and I’m feeling fairly frustrated because they haven’t been given any significant thought; I mean, it’s over and done with. So that’s why I’m asking the question.
It’s not the first time we’ve heard about the need for a preamble, for instance. We heard earlier from the executive director of Metrac, who referred to your brief later this evening, which we were looking forward to because she said you would be expanding on that need. Is the government considering that? That would be a fair question, because if you are, we can do some work on it together. I’m prepared to do the work. I would prefer to do this work in the break, because I see this as a major amendment that could be brought forth when the House resumes and we could really get a lot done. There just hasn’t been the opportunity in the last two years to get it done to the extent of the kinds of suggestions we’ve heard this evening, a lot of which you said is not new to you but it’s new to me. If we have to have it done by next Monday evening, which is the time frame you’ve given us, is there serious consideration being given to a preamble, for instance, by the government?
Mr Wessenger: I think it’s very premature at this time to make an assessment of what other amendments the government may consider. Let’s just say that we are listening to all the presenters, and based on what we hear from all the presenters, there may be some amendments. This whole question of sexual abuse has been going on for a long time. This legislation is an attempt to achieve a balance between the survivors and the health professions, a workable balance, one that will work for the future.
Mrs Cunningham: Could I ask another question then? Some of the presenters this evening have informed us that they’ve been able to respond to the government and others have said they haven’t seen the amendments at all. In one case there was a representative from Durham, I believe, from Mr White’s constituency, who hadn’t seen the amendments at all, and yet they’ve worked together as professionals. That’s my understanding. I’m sure that there will be some follow-through because they’re going to now respond to the amendments, that kind of thing.
Mr White: On a point of privilege, Mr Chairman: I’m no longer employed in the region of Durham; I’m employed by the provincial government. I did formerly work with that person, but that was long before this bill was suggested.
The Vice-Chair: Thank you for that clarification, Mr White.
Mrs Cunningham: I’m sorry I even mentioned it. I’ve been a social worker in London for five years. I have to say I could never do this job if I didn’t tap into the front-line workers that I’ve dealt with over the years. They’re the most significant contributors to anything I can do because I can pick up the phone and they tell me how things are now. I feel like I’ve been away so long.
The Vice-Chair: Please proceed, Mrs Cunningham.
Mrs Cunningham: Well, I will. I’m just wondering then if I could ask a question perhaps of the parliamentary assistant in this regard. If we do come up with a lot of new amendments that reflect and we find that we’re not going to be able to get through them on Tuesday next week, is there any thought from the government that we can postpone this piece?
The Vice-Chair: There is a correction as well. The deadline for the amendments is 5 o’clock on Tuesday. It does not include the evening, I’m informed. It’s the afternoon of Tuesday.
Mrs Cunningham: So we have an hour and a half to look at amendments.
The Vice-Chair: I believe so.
Ms Tellier: One easy solution that has often been done in criminal legislation is to build in a very easy amendment which is a review in a year to see how it’s working. You might want to consider that one.
Mrs O’Neill: Very good.
Interjection: Yes, we do have advisory councils.
Ms Tellier: Thank you very much for your time, committee members.
The Vice-Chair: Thank you for your presentation.
ONTARIO ASSOCIATION OF PROFESSIONAL SOCIAL WORKERS
The Vice-Chair: The next presentation will be by the Ontario Association of Professional Social Workers. Are the representatives present at this time? Please come forward and introduce yourselves, and then proceed with your presentation.
Ms Barbara Chisholm: Good evening, ladies and gentlemen. My name is Barbara Chisholm. I am the spokesman for OAPSW this evening. To my right is Mr Daniel Andreae, who is the president of the Ontario Association of Professional Social Workers and can reply to any questions about the function, the operation, the structure, the wishes, dreams and policies and all the other things about OAPSW.
I appreciate the opportunity to meet with you this evening, and I appreciate as well the hour and the fatigue and the limitations presented by the restriction on time which looms within the world of reality. Therefore, I will restrict my comments to two areas only, leading to some suggestions we might make to committee.
We have had an opportunity to see the suggested amendments. We want to go on record as saying that we endorse the efforts of this proposed legislation. As professional social workers we are close daily, and one of the reasons, I suspect, that I have been asked to be spokesman this evening is that I am daily in my own practice close to the issues that it addresses.
I’m sure that you have heard a great deal around the two issues that we would like to speak to tonight: the definition issue and the mandatory reporting issue. Forgive me if we are repetitive of other groups that have already commented ahead of time.
We believe that the definition as suggested which contains the phrase “sexual abuse” is too broad as presently structured. In its attempt to be effective, it casts, as structured, too wide a net and therefore runs the risk of focusing on, if you will, the small-fish dilemmas that will arise and perhaps run the risk of losing some of the more significant issues.
This point of view comes out of the experience we’ve had in both family violence issues and child sexual abuse issues, in which the issues of mandatory reporting have created a backlog problem now that is very serious in terms of the quality of investigative skill that’s available to deal with reports as quickly as the protocols require. In my own experience, I know that, realistically speaking, sometimes serious situations have had to literally wait because of the preoccupation with a minor one. That becomes a judgement call, and I acknowledge that, but nevertheless we are concerned about that.
In the last analysis, even with definitions the decision to report or not to report is a judgement call. The goal of reporting must be seen to be the possibility of action response. There is no point in having excellent legislation mandating reporting if there is not a structure in place that allows you to do something constructively, responsibly, professionally with that report. The issue in legislation surely must be that the public will see that something has happened because of the legislation, because of the reporting.
Therefore, it is critical that we avoid the possibility of overload, with its negative consequences, if this can be done in advance, just as with the Criminal Code there is a graduation, a range, from zero to 10 of severity of issues involved, the severity of the offence.
Therefore, we would support the suggestion, the recommendation of the coalition that the language be changed from talking about sexual abuse to that of sexual offence, that the theme within that be the exploitation of a relationship with a patient or the exploitation of a vulnerable patient by the accused member and that those offences be broken down to three groupings: sexual impropriety, which would include behaviour or remarks of a sexual nature by the member to the patient; sexual transgression, which would be touching of a sexual nature of a patient by the accused member; and sexual violation, which would include sexual intercourse or other forms of physical sexual relations between a patient and the member.
We would also suggest that in the definition of the techniques used in that latter definition of sexual violation, the legislation or the regulations include use of not just the member’s body or any body parts but in fact as well instruments or implements since, in our social work experience, sexual violations occur with the use of a number of materials, not necessarily just with the body or body parts of the transgressor. In order to make sure that is not avoided, we would suggest you include that.
We would suggest that level 1, sexual impropriety, place upon the public and all professionals a duty to intervene — that if, for example, there is a practice of constantly telling inappropriate so-called jokes, that be finally spoken to — but that it be recognized, and I’ll speak to this in just a moment, that voluntary intervention may lead to an obligation to report.
The obligation, the duty, to report we believe should sit on the second and third, the transgressions and the violations.
In the suggested penalties that are proposed in the legislation, there is a long list, which may indeed be deleted, I understand, of the various forms of sexual violation or transgression behaviour which would come under the rubric of touching.
In point of fact, if there is a decision to retain that long list, we would suggest a phrase be added which would say, “or encouraged and sought” after the word “prescribed” in the last two sections on page 3 of the proposed legislation, leading to a revocation of licence, so that again the word “prescribed,” if that is used, does not provide a defensive escape hatch that says, “I’ve never prescribed any of this; it was all in his or her imagination. I as a physician did not write it. Show me the piece of paper where I prescribed it,” as though it were a medication. “Encouraged or sought” this behaviour of touching would, in our opinion, block the use of that as an escape hatch.
However, it is our preference that this long list be deleted altogether, because in a sense it retries the issue. If the accused practitioner has indeed been found guilty of professional misconduct, that should be sufficient within the terms of whether it is (a), (b) or (c), 1, 2 or 3, impropriety, transgression or violation, to have assigned penalty, not to re-examine the details of the offence.
For a level 1 offence, that is, the impropriety, the person who insists upon telling bad jokes, who insists upon being salacious, who insists upon standing too closely to another person, all of the suggestive behaviour which is unacceptable and offensive and for a vulnerable patient may be frightening and therefore harmful, we would suggest initially that there be a reprimand and a warning for a first offence.
However, we would also recommend that you consider adding a second section to level 1 or introducing a subset to level 2 which would indicate that repeated offences of this nature and repeated reports of this nature would bring about penalty, not just reprimand but indeed penalty, so that what one is responding to is the range of offences, from so-called minor offences to the very serious ones.
In recognition of time, I will withdraw at this point and conclude my remarks.
Mr White: I’m wondering, in regard to the issues around reporting, Ms Chisholm, if I understand it correctly, social work is not one of the regulated health professions, although it’s by far the largest mental health profession in the province?
Ms Chisholm: That is correct.
Mr White: Does the fact that it’s not one of the regulated health professions place the clients of your profession in jeopardy?
Ms Chisholm: Thank you for raising that, sir. There is no doubt in our minds, as a professional organization and as professional social workers, that indeed this is so. I think it is fair to suggest that we are the most frequently-called-upon professional group to deal with all issues involving sexual misbehaviour, whether for babies, children, adolescents, youth, adults or indeed the elderly. We are expected, in terms of the mandated work of the children’s aid societies, to respond immediately, effectively and with the notion of respect for the protection of vulnerable populations, particularly minor children.
We are often, and in my own practice, if I may speak as myself at this point, used as expert witnesses in issues where this very serious allegation remains unproven but is influencing such issues as the custody of children in a separation or divorce struggle between former spouses.
There isn’t any doubt in our minds that, as it presently stands, all of the clients of all of the social workers throughout all of this province will not have any protection from this legislation. I don’t want to come here to talk about only that issue; therefore, I did not raise it as a primary issue. I wanted to speak to the legislation, Mr White, but I appreciate your providing the opportunity for us to say that we are very, very concerned. We want to be a part of this. We want to participate. We want to cooperate. We want to help. We think we have more than a little to offer and regret that we are not, at this point, a regulated profession.
Mr White: Secondly, in terms of the reporting, I understand that members of the regulated health professions are obligated to report where they are aware of their clients having been sexually molested. Now, as social workers will be working with the largest number of people who have been in that position, women who have been molested or physically assaulted, as we heard earlier this evening, they are not, under this legislation, required to report, as you are required to report, say, child sex abuse or child physical abuse.
Ms Chisholm: Child abuse issues, yes.
Mr White: But there is no obligation under this legislation for your profession to report any instances of sexual abuse by professionals. Would that not also give an added limitation to the effectiveness of this legislation?
Ms Chisholm: Yes indeed, sir. The paradox in which we find ourselves as a profession is that we have an ethical and moral obligation as set out by our standards of practice and the ethics of our practice and the guidelines to practise endorsed nationally and internationally. We have that mandate and indeed that obligation. Failure will subject us, those of us who are members of our college, to sanction by our college. But we are not in a position, ironically, to operate within the mandate of this proposed legislation. We regret that.
Mrs O’Neill: As usual, I find your presentation very helpful. I think that when you do come before us again, and I know you will, to request regulation, you should bring this brief because otherwise we’re going to continue the contradiction that exists in this and many other situations.
I found it very interesting that you would talk about the mandatory reporting in the way you did, because there seems to be a great sense of security if we get mandatory reporting. But you want it to go one step further: What happens to the report? I’d like you to say a little bit more about that from both the perspective of your professionalism and the perspective of the people you work with, because I really do think that the credibility of this bill is going to revolve around that issue.
Ms Chisholm: It is not enough to have in place legislation that indicates good intent to protect the public from professionals in the health field. That is a first step. But if we require, if the legislation requires, if this Parliament, this House requires the obligation and places more than a moral obligation on health professionals to intervene and/or to report when they have reason to believe, in the course and the context of their professional activity, that these violations have occurred, it is incumbent in terms of the public relations and public policy aspect of this intent and this legislation that there be mechanisms in place to deal with it.
There is a public out there which is becoming increasingly educated and sophisticated and litigious. As it becomes more litigious, it educates itself through the legal profession and the advice it receives from the legal profession. If we, as responsible professionals, report to the appropriate body and the appearance is that nothing happens, the seriousness of the fallout from that is not to be measured. The collapsing credibility, the weakness in trust, the whole approach that this was whitewashing intended to cover something but not do something becomes extremely difficult to address later on.
There is, unfortunately, bad humour out there about the professional bodies’ capacities to protect each other. We all are familiar with the bad jokes; we don’t need to repeat them here. We all know them and we all go ha-ha when we hear them. But in my private practice, something approaching 96%, 97%, 98% of my referrals all come from the legal system. I spend a lot of my time defusing the anger and the rage and the frustration that many clients have felt about that system, both at the lawyer and at the bench level.
Please, don’t pass legislation without implementing regulations and a budget, designated responsibility for implementation and mechanisms that can be shared with the public at large through written documentation and handbooks available in every physician’s office, every psychologist’s office, every social worker’s office.
Mrs O’Neill: I really do hope your advice is taken.
Ms Haeck: I am interested in your comments regarding the duty to intervene. We’ve had a presentation by — let me make sure I get the name of the organization correct — the Ad Hoc Coalition of Regulated Healthcare Associations on Bill 100.
Ms Chisholm: I’m sorry, the Ad Hoc —
Ms Haeck: I’ll show you the copy. In that, they talk about the various levels of sexual abuse and sexual impropriety, namely, “Behaviour or remarks of a sexual nature by the member towards the patient that causes harm to that patient…has the duty, acting reasonably in good faith and in the best interests of the patient, to intervene forthwith.”
There are four processes which can be used by a member of one of the respective colleges to flag the sexual abuse of another. One of them is just “meeting with the member to admonish that member to cease such behaviour, to apologize to the patient, to seek counselling or to take such other remedial action as the member may consider warranted under circumstances.” It goes on.
You refer to that in your own comments, is that correct?
Ms Chisholm: That’s correct.
Ms Haeck: I have a concern about that. In essence, what it seems to overlook is the fact that at some point you have to establish the baseline, and that if you preclude mandatory reporting, there is no baseline. If you have to establish some kind of trend — and I think that’s what we do have to do to track the abuse, however minor in some people’s eyes, but obviously on the part of the patient it is real, it is demeaning, and should therefore be recognized — we have to report; we just have to get that in there.
Would you recognize that if a member hears of abuse and the patient who has advised that member of the abuse on the part of another member does not want her name used, as the legislation allows, that member should still go forward and report that particular action because it will establish a baseline and possibly, over time, allow the college to track the behaviour of that particular member?
Ms Chisholm: I think you’re raising a crucial point. What I was suggesting was an attempt to find middle ground between what they have suggested — I share the concern that we not set everything over here and ignore over there. The point I tried to refer to earlier — I would have elaborated much more carefully if we’d had enough time — does not allow for the experience we all know, which indicates that certain behaviour, unchecked, increments in intensity. We know that from family violence studies and we know it from the experience of child sexual abuse, that it increments in intensity over time. So you’re absolutely correct on that issue.
That was why I was attempting to suggest a middle-ground position, which is that it is probably impossible, and I’m not sure it’s wise, for us to attempt to check at a mandatory reporting level every unacceptable bit of behaviour. That troubles me in terms of the broad range, for example, of a multicultural society where there are cultural norms of what’s tolerable, for example, by men in one culture which I would find offensive in my culture. But I work with some of these people and have to find middle ground with them, because what they consider acceptable is not necessarily my definition, and it doesn’t mean that their behaviour is reportable in my definition; unacceptable, but not necessarily reportable.
That’s why I suggested this idea, which we would be prepared to elaborate in more depth and send a subsequent letter to you in more detail, that repeated — and we might try to struggle with how many repeats is good or bad — instances of this kind of unacceptable but less crucial behaviour which is offensive and possibly frightening and harming to a vulnerable patient — you’re absolutely correct about that — falls within what becomes the orbit of mandatory reporting.
But to save that system which needs to be set up from having to treat equally at a response level somebody who hasn’t got good judgement and has bad taste about his joke level and isn’t very sensitive to what he’s done to his patient’s comfort level — equating that with the man who exploits that vulnerability to set a patient up to accept and endure his sexual advances and transgressions, we would be prepared to struggle to elaborate that if that would be of assistance to you.
Ms Haeck: One suggestion I have made to another presenter was that what becomes clear in all of these discussions, to my mind anyway, is that, as we’ve discussed it for the bench, I think some cultural sensitivity might not be averse for the broader range of the medical professions as well.
Ms Chisholm: That’s right. We’re aware of the damage that insensitivity can do.
Ms Haeck: Right. I think I’ll end there because I know we have a long list of presenters yet.
The Vice-Chair: Thank you for your presentation.
Ms Chisholm: Thank you very much. We appreciate your listening to us. Would you like us to follow up with a subsequent letter of suggestions and elaborating our position? Would that be of assistance?
The Vice-Chair: Yes.
Ms Chisholm: We’ll be happy to do that.
The Vice-Chair: Do that through the clerk, please.
WOMEN’S HEALTH IN WOMEN’S HANDS
The Vice-Chair: The next presentation is by Women’s Health in Women’s Hands. Good evening. Please have a seat, introduce yourself, and proceed with your presentation.
Ms Vuyisuva Keyi: Good evening. My name is Vuyisuva Keyi. I’m the health promotion coordinator at Women’s Health in Women’s Hands. Simone Hammond was going to come with me and do part of the presentation, but she’s doing a workshop tonight so she couldn’t come.
I would like to start this presentation by reading a poem for you that was written by a Somali woman. Her name is Dahabo Elmi Muse, and it’s a poem on female genital mutilation.
Pharaoh, who was cursed by God
Who did not hear the preaching of Moses
Who was led astray from the good word of Torah
Hell was his reward!
Drowning was his fate!
The style of their mutilation — butchering, bleeding,
veins dripping with blood!
Cutting, sewing and tailoring the flesh!
This loathsome act has never been cited by the Prophet nor
acknowledged by the Hadith!
Non-existing in Abu Hureyra.
No Muslim ever preached it!
Past or present, the Koran never preached it —
This “Pharaonic mutilation”
And if I may think of my wedding night,
awaiting me are caresses, sweet kisses,
hugging, and love?
Awaiting me is pain, suffering and sadness.
In my wedding bed there I lie groaning,
curling like a wounded animal, victim of feminine pain.
At dawn awaiting me — ridicule.
My mother announces
yes, she is a virgin!
When fear gets hold of me
When anger seizes my body
When hate becomes my company or companion
I get feminine advice:
It is only feminine pain, they say,
and feminine pain perishes like all feminine things!
The journey continues, or the struggle continues, as modern
As the good tie of marriage matures
As I submit and sorrow subsides
My belly becomes like a balloon
A glimpse of happiness appears
A hope, a new baby, a new life!
Ah, a new life endangers my life
A baby’s birth is death and destruction for me!
It is what my grandmother called the three feminine sorrows,
and if I may recall, my grandmother said:
the day of mutilation, the wedding night and the birth
of a baby, are the three feminine sorrows.
As the birth bursts from me: And I cry for help,
the battered flesh tears again.
No mercy, push they say! It is only feminine pain
and feminine pain perishes like all feminine things!
When the spouse decides to break the good tie
when he concludes divorce and desertion,
I retire with my wounds.
And now, hear my appeal!
Appeal for dreams broken
Appeal for my right to live as a whole human being
Appeal to you and all peace-loving people.
Protect, support, give a hand
to innocent little girls, who do no harm, trusting and
obedient to their parents, elders,
and all they know are only smiles.
Initiate them to the world of love, not to the world
of feminine sorrow!
This poem won the first prize in the poetry competition for female poets of Benadir and was recited during the closing ceremony of the International Seminar on the Eradication of FGM held in Mogadishu, Somalia, in 1988.
Dahabo Elmi Muse, unfortunately, was recently killed in Kismayo.
I have consistently found myself in a very difficult position around the whole issue of sexual abuse and the whole issue of Bill 100 and the sexual abuse of women. We have found ourselves having to come before groups that are predominantly whites, like here, to talk about the issue of female genital mutilation, to talk about the definition of female genital mutilation and the impact of that on women’s lives, and know that I’m running the risk of having everybody look at me and every black woman as being part of the perpetrators, and also as being either mutilated or otherwise and wondering what my life is like.
We have been doing this work at Women’s Health in Women’s Hands for a number of years now. We work with women from the community, particularly women from Somalia, who have been looking at this issue and have been educating us on what are the issues and what needs to be done internationally.
We have participated in international forums in London, England, around this issue, looking at what is the role of governments in western countries around the issue of female genital mutilation. We recognize a lot of the limitations of sexual abuse as defined as in western terms.
The college of physicians took a position on female genital mutilation at the beginning of 1992, and part of what it said was, “Following a comprehensive review of information received from a variety of sources relating to female `circumcision, excision and infibulation,’ the council has concluded that the performance of any of these procedures by a physician who is licensed in Ontario will be regarded as professional misconduct.”
Women’s Health in Women’s Hands was one of the variety of sources that facilitated the direction that the CPSO took on female genital mutilation. Since then we’ve been working with women in the community, as I said before. Our position is that female genital mutilation is a critical health issue. It is violence against women, it is a violation of human rights and it is child abuse. But more importantly, as the poet Dahabo expresses it, it is a violation of women’s sexuality. Its intent is to curb women’s sexuality, the perceived excessive sexuality that it is feared will overwhelm society if women are allowed to be full sexual beings. It also facilitates male dominance in control of women’s lives.
The definition of “sexual abuse” as it exists right now in Bill 100 is very problematic. Our main problem with Bill 100 is the limited definition that they use. In Bill 100 and in much of the current western thinking, sexual abuse is predicated on the immediate sexual gratification of the perpetrator. Without this proviso there is no sexual abuse perceived or accepted as having occurred. The definition of “sexual abuse” should be defined solely on the impact as experienced by the victim regardless of whether there has been any sexual pleasure experienced by the perpetrator. Women who have been subjected to various unnecessary procedures to their genitalia experience untold suffering in all aspects of their sexuality, in self-definition, in self-esteem. They have to fight very hard to begin the work of self-advocacy towards a life without pain.
Bill 100 is a very weak piece of legislation, but it is all that women have at the moment to ensure that some of the wrongs we have endured can begin to be addressed. The government proposes to delete the provision in subsection 1(4) which states in part that “the council may make regulations clarifying or extending what constitutes sexual abuse of a patient by a member.”
I know that I will not be able to convince anybody in here to extend the definition of “sexual abuse” to include female genital mutilation as part of section 1, but what I’m asking for and what we’re asking for in the community is that the provision that allows the regulations to further clarify and to extend the definition of sexual abuse be left in the provisions as it was first put in there so that at least there’s a possibility for us being able to work at recognizing and working around the issue of all the other different issues that have an impact on women’s sexuality that are perpetrated by the medical establishment and other health professionals.
Those are some of the things that we have as a problem with the legislation. The issue also of defining sexual abuse as is being proposed by some of the other recommendations that we looked at in terms of the presentations that were made is that they should look at sexual abuse in grades, in levels. If there’s something that is somewhat unpleasant, it should not be defined as sexual abuse, it should not be reportable, because it is only somewhat, and it’s just a question of a person being insensitive.
We’re looking at the impact of sexual abuse on women, lifelong, long after the event has happened, whether it’s comments or statements or things that people do to women at the time at which they’re experiencing whatever is going on to them at the time that they go to see any health professional. For that to be minimized into being issues of insensitivity by the person and therefore should not be reported is also the same way in which all different governments have minimized the issues of violence against women.
We have watched the federal government blow $10 million on a panel to talk about violence against women instead of actually doing some services and some provision. I want to urge the committee that is looking at this legislation to ensure that the legislation does not get any weaker than it already is. It has a lot of pieces in it that are missing. Some of the areas that I want to look at, the areas that we had to deal with when we went to some of the consultations around this, make us wonder why we’ve even been coming back over and over again. We have had to come back and argue and argue against things, for example, like the subrogated issue that was being put in that finally got taken out.
That to me is very problematic. If there is a possibility for any of these kinds of extra pieces to the legislation to be put in by any other body within the health professional body, to change what is in essence a provision that is supposed to try and redress some of the things that women have gone through, then we are constantly going to be coming back over and over again, and that is exhausting. That, to me, is a further sexual abuse. It means that as women what is going on in our lives is not being valued, what is happening to us is not being looked at or examined critically and nobody is taking it very seriously. It has been measured primarily on whether or not the perpetrators have got any pleasure out of this. I don’t think that should be what is our criteria for looking at what is sexual abuse and the impact of that on women and what happens to them.
We are looking at, right now, the possibility of trying to come up with a consolidated position and policy from all the various levels of government around the issue of female genital mutilation. We have not been able to find any other piece of legislation that has been willing to look at FGM and put a clear directive and clear legislation that we can work with around doing the education on female genital mutilation and its eradication, in Ontario particularly and probably for the rest of Canada.
What we are seeing is doors closing everywhere we turn for trying to come up with something that will allow for the advocacy and the work that needs to be done in order for this practice to be eradicated. We are seeing doors closing. Every time we try, we come up against any other particular legislation that is being discussed, whether it’s the Criminal Code or this legislation, to say that there has to be a way to ensure that the people who perpetrate these kinds of practices can be dealt with within the system and women can get some redress.
Part of the problem with the CPSO directive is that it is very difficult to find anybody who is willing to come forward from the community to report. This is an issue where there’s a lot of education that also needs to be happening. So in a sense I’m really glad that there is the mandatory reporting provision in there and I wish it was stronger than it is right now.
The college, since it put this directive down, has not been able to find anybody guilty of having done this practice, and yet in the community we hear stories and we know that there are women who have been able to find physicians who have charged to do this to their children, to themselves and to other young women in their lives, which the women come forward and ask for.
This, to us, means that the mandatory reporting has to get outside this whole issue of saying it’s a cultural issue. The notion that we can talk about the fact that other cultures may tolerate certain violence and others don’t is a notion that is very divisive in a multicultural society, it is very divisive in a multiracial society, because there is no society that is more tolerant in terms of if you’re looking at what women are going through. There is nothing that makes me, as an African woman, tolerate more pain than a white woman in Canada — nothing. There’s nothing that predisposes me to tolerance for pain and violence in my life.
So to look at this and say other societies tolerate, culturally, violence against women in different ways that this society would not tolerate is a violation in itself. It assumes that the societies that are male-dominant and the definitions they use to define what is abuse and what is not abuse are what stands for any other society that looks out here. This society also tolerates a very high level of violence against women. There was a judge in Victoria, BC, who decided that a three-year-old had a history of sexually seducing men, in this society that is not tolerant of sexual abuse and violence against women. So we have to look at that and look at the racism in some of those statements and what we’re doing and how we’re doing the work.
This is what I would like to see: I would like to see the provision that allows for further clarification and extension of the definition of sexual abuse remain in the legislation as it stands to allow us to be able to work at a clear definition that everybody can work with.
The Vice-Chair: Thank you for your presentation. I’m sorry, time does not allow for questions. We’re at the end of our time, but we appreciate your presentation.
Ms Keyi: I’m not surprised.
The Vice-Chair: Does someone have a question?
Ms Keyi: No, you said time does not allow, and I’m used to that reaction too.
The Vice-Chair: Everyone is time-allocated.
Ms Keyi: Time never allows to discuss issues that are —
The Vice-Chair: We wish that all of the deputants had more time for both presentation and questions and discussion.
Ms Keyi: Mr Eddy, I was supposed to present at 8:15. I was kept here until 9 o’clock.
The Vice-Chair: Yes, I know you were later —
Ms Keyi: I made my presentation and as soon as I finished you did not ask any of these members in here if they had any questions. You have decided that the time does not allow.
The Vice-Chair: I’m sorry.
Ms Keyi: That’s okay.
The Vice-Chair: Just a moment. They indicate prior to the completion and during the presentation if they have questions. That happens all the time.
Ms Keyi: Yes, it happens all the time, especially when we’re debating issues that do not pertain to the mainstream society.
The Vice-Chair: If anyone has a question they would like to ask the deputant, you may proceed at this time. Are there any questions? Thank you.
Next presenter please, the Respiratory Therapy Society of Ontario. Would the presenters please come forward, introduce —
Ms Keyi: I would like to —
The Vice-Chair: I’m sorry, I’m in the middle of sentence. Would the presenters like to come —
Ms Keyi: I would like this to go on record.
The Vice-Chair: What is your statement?
Ms Keyi: It doesn’t matter what we say and the work we’re doing and the kind of pain that women are going through in this society and in any other part of the world. When we come forward, it’s at great risk to our own lives to present something to you to have you even listen to us.
You tell me you don’t have the time. I’m used to that too, and that has been always what my life has been like. It seems as if all the things that I have done here — to find that I can sit in here and take my time and my energy and the pain that women have gone through in my community and come here and run this risk and have you tell me you don’t even have the time to ask me what it is you don’t understand about what I am saying is very dismissive. It’s very, very dismissive.
The Vice-Chair: Thank you for your presentation.
Ms Keyi: No, don’t thank me. I’m sure you didn’t want to hear it.
The Vice-Chair: That’s not correct.
RESPIRATORY THERAPY SOCIETY OF ONTARIO
The Vice-Chair: Would the next presenters please come forward, introduce yourselves and then proceed with your presentation.
Mr Sean Kenny: My name is Sean Kenny. I’m the president-elect of the Respiratory Therapy Society of Ontario.
The Vice-Chair: I’m sorry to inform you that we are under time restraints. We hope to have 15 minutes. If it does allow time for questions, we’ll have it. Unfortunately, if it does not, then there isn’t time for questions. I have to perform that way.
Mr Kenny: First of all, the Respiratory Therapy Society of Ontario was formed in 1972 and represents the majority of registered respiratory therapists in the province of Ontario. Registered respiratory therapists assist in the diagnosis, treatment and promotion of the wellbeing and quality of life of patients with respiratory and associated disorders.
The practice of respiratory therapy has been defined as “the providing of oxygen therapy, cardiorespiratory equipment monitoring and the assessment and treatment of cardiorespiratory and associated disorders to maintain or restore ventilation.”
Registered respiratory therapists are one of the newly regulated professions under the Regulated Health Professions Act. Members of our association work in the institutional setting, employed by the vast majority of hospitals within the province, and the community-based setting, working for most home respiratory suppliers in Ontario in sales and in the field of education.
The Respiratory Therapy Society of Ontario fully supports the principle of Bill 100; that is, to define what constitutes sexual abuse, to identify sexual abusers who are members of Ontario’s health professions, to develop a responsive discipline process to ensure punishment of abusers and to ensure sensitive and compassionate treatment of survivors. However, we do have a number of concerns with the legislation, in that while the objectives are clear, the means to achieve these objectives may not be adequate.
More specifically, we are concerned with the following: firstly, the definition of sexual abuse; secondly, mandatory reporting; and thirdly, program for funding counselling.
Concerns with the definition of sexual abuse: Currently, the ministry is planning on implementing one definition of sexual abuse for all professions. The Respiratory Therapy Society of Ontario recognizes the difficulty in defining sexual abuse, particularly with respect to remarks and/or behaviour, in that the definition will be subjective in nature and therefore difficult to interpret. However, this definition must be more objectively outlined within the legislation to ensure that abuse is no longer open to interpretation.
The Respiratory Therapy Society of Ontario also believes that there must be a mechanism for clarifying what constitutes sexual abuse within each profession. However, the mechanism that was contained within the legislation when it was initially introduced allowing for extension or clarification of what constituted abuse has been removed by the government. While we agree that there is no need for a mechanism to extend the definition of abuse, the need for clarification within the regulations for individual colleges is essential.
Concerns with mandatory reporting: The Respiratory Therapy Society of Ontario supports the requirement for mandatory reporting of members of the same college, as members of the same profession may be in one of the best positions to evaluate the actions of a colleague in determining whether the actions of that colleague would constitute sexual abuse. Members of the same college would have a firm understanding of the scope of practice of the profession and therefore what constitutes appropriate and inappropriate actions.
However, the RTSO is concerned with the requirement for mandatory reporting of members of another college for the following reasons: First, members of a college may not have a clear understanding of the scope of practice of another profession and should not be judging the actions of another health profession based on limited or non-existent knowledge. This process would be arbitrary and would not serve the interests of the patient.
Second, the requirement to report members of other professions, some of whom may be in positions of authority over others, may jeopardize the standing of these health care professionals within their place of employment. To date, we have not seen any evidence that the ministry has developed an enforceable mechanism to ensure that the rights of all professions will be protected in this regard. As a result, we would recommend the removal of this requirement.
We are also completely opposed to the requirement for treating professionals to report their health care patients to the patient’s respective college. We believe this to be a contravention of our rights and could potentially result in an increase in sexual abuse, as professionals will no longer have the freedom to seek treatment without fear of reprisal.
Concerns with funding counselling: The RTSO supports the principle of funding for counselling of survivors of sexual abuse by health care professionals while under the professionals’ care. The RTSO, however, does not believe that the colleges should be required to fund treatment for counselling for survivors of sexual abuse. There is no other self-regulating profession in Ontario that carries that burden. For many of the smaller professions, this requirement could even prove to be financially crippling to the functioning of their college.
With respect to funding the program, we would recommend one of the following options: First, that fines levied on abusing professionals be deposited into a specific college account and that these fines pay for the counselling of survivors, or, second, that the fines continue to be deposited to the general revenue accounts and that the funds for treatment and counselling be provided out of these general revenues.
In conclusion, the Respiratory Therapy Society of Ontario applauds the work of the government in introducing legislation to deal with the issue of abuse of patients by health care professionals. The Respiratory Therapy Society of Ontario has acknowledged the problem and for the past several years has been working with the government, health care providers, survivors and their representatives to address this issue.
We fully support the initiative undertaken by the government and fundamentally believe that this legislation, with amendments to the sections on definitions of “sexual abuse,” “mandatory reporting” and “program for funding counselling,” will ensure that patients have the protection they deserve and that it will be the first step in achieving the goal of the elimination of sexual abuse of patients by health care professionals.
The Vice-Chair: Does that conclude the presentation? Thank you. Ms O’Neill had indicated during the presentation that she had a question to ask.
Mrs O’Neill: You have brought a different perspective on the mandatory reporting. I wonder if you would expand a little on how you could see the legislation improved. In your statement, “We have not seen any evidence that the ministry has developed enforceable mechanisms to ensure that the rights of all professions will be protected in this regard,” you must have some reasons for saying that. Hopefully, you have some ideas on how that could be accomplished. As you see if you’ve been sitting here a while tonight, mandatory reporting is a rather crucial element of this particular piece of legislation.
Mr Kenny: Yes, and we do believe that mandatory reporting within the members of the same college is important and essential. The problem we see with regard to the existing legislation and how we might suggest an improvement: I submit it may be impossible to do more than what has already been done in terms of protection of the rights within an employment situation, because certainly the clause is within the legislation that states that your employment situation cannot be jeopardized. But the fact is that in working situations, you have people who have positions of authority over other individuals. It’s our feeling that to have mandatory reporting between colleges, there is no way to protect that individual who might be doing the reporting against a colleague who is in a position of authority over that person. That’s why we propose that it be dropped from the legislation.
Mrs O’Neill: I would surely find that would make this bill very, very weak if it came forward. If that’s the case, this bill is not going to serve its purpose, because I think — and I have heard quite a few presentations on this point — there is a lot of interdisciplinary contact, communication, trust, and mistrust, that are going to have to be part of the way this bill is going to unfold if it’s going to be meaningful and is going to come alive in the community. If we remove this part of the bill in its totality, and that’s what you’re asking for, I really do not see how this bill can operate.
Mr John Bell: I’m John Bell, the past president of this society. I think Sean is stating more that what might happen is that the worker could be placed in a situation of being in conflict with the supervisor, employer etc, which is understandable and will happen in those cases. What could possibly be written in to alleviate something like that might be protection of that individual in that type of situation versus completely withdrawing it. I know we’ve asked for withdrawal in that case, but we certainly would consider something of that nature to protect the rights of the individual versus completely withdrawing that from the bill.
Mrs O’Neill: So you feel a regulation needs to be particularly strong in that area. I would tend to agree with you. I suppose it would compare to the civil service whistleblowing legislation, but much more serious, in my humble opinion.
Mr Bell: I agree.
Mrs Haslam: My question was along similar lines, and I fully agree with my colleague that through the presentations we’ve heard tonight, victims are asking that we do this and do it quickly. They’re tired of waiting for this legislation. There have been a lot of consultation meetings — April, July, August, October; many phone calls to groups like yours; consultation; preconsultation; “What do you think about this type of legislation?” I think erring on the side of the victims is where I would rather be right now in this legislation.
My concern was on page 12. You said, “Not only does this requirement infringe on the right of professionals, it will also reduce the number of professionals seeking treatment.” We’re hearing in consultation that in the past this particular function — I’m talking about psychoanalysis right now — when you talk about cross-disciplinary has been seen as a way of getting out of being reported and having to pay for the occurrence of sexual abuse, “I’m receiving help for this problem; therefore, I don’t need to have disciplinary action.”
Maybe that’s just a comment, but that’s one thing I’m hearing. You’re saying it will reduce the number of professionals seeking treatment. We’re talking about filing a report where they have reasonable grounds. I know they’ve looked at the idea of having a statement come from a professional along with that report that says they are getting help and it is curable, and therefore that would be taken into consideration by the college when it is looking at these incidents.
I feel the ministry has heard some of the concerns around the mandatory reporting and has tried to bring a balance in. On one side, you have the victim saying, “If you don’t have that type of reporting, it’s very weak,” as my colleague has said. On the other hand, you have professionals saying, “We do have to have some leeway there to say that there is help and that we have input into that mandatory reporting.”
Maybe it’s not a question, but I feel that comment was very necessary, given this particular part of your presentation.
Mr Wessenger: I’d like to make a clarification about the aspect of protection for a person reporting. In fact, in the bill, section 92.1, there’s a provision that, “No person shall do anything, or refrain from doing anything, relating to another person’s employment or to a contract providing for the provision of services by that other person in retaliation for that other person filing a report or making a complaint, as long as the report was filed, or the complaint was made, in good faith.”
As long as the complaint was made in good faith, there is that protection.
The Vice-Chair: This completes the question period. Thank you for your presentation.
TRANSITIONAL COUNCIL FOR THE COLLEGE OF DENTAL HYGIENISTS OF ONTARIO
The Vice-Chair: The Transitional Council for the College of Dental Hygienists of Ontario is next. Please introduce yourselves and proceed with your presentation when you’re prepared.
Ms Linda Strevens: I’m Linda Strevens, the registrar for the College of Dental Hygienists of Ontario. On my right is Mrs Jane Rogers, one of our professional members of council and leader of the working group that has been dealing specifically with Bill 100. Thank you very much for your time this evening. I do realize it is getting on.
The College of Dental Hygienists of Ontario will, upon proclamation of the Regulated Health Professions Act, be responsible for regulating the profession of dental hygiene. To date, the Royal College of Dental Surgeons of Ontario has been the governing body of dental hygienists. Although we will become self-regulating for the first time as a new college, we have had regulation for over 40 years. Our membership is composed of 4,900 dental hygienists, with approximately 1% being male. It is the mandate of the college to regulate the practice of the profession and to govern the members in accordance with the RHPA. As such, we must investigate complaints of sexual abuse and discipline guilty members. Thus, the need for effective, workable and enforceable legislation is critical.
The transitional council supports the goal of zero tolerance. We have been actively involved with other councils towards developing a sexual abuse prevention plan and have attended meetings that brought together survivors of sexual abuse with advocacy groups, governing bodies and professional associations. These meetings have provided us with a better understanding of the survivors’ concerns.
We strongly support the recommendations that were made last week to this committee in the submission by the Coalition of Regulatory Colleges and transitional councils. Many of these points are contained within the contents of our written submission. Mrs Rogers will now briefly outline some of the specific points as they relate to the profession of dental hygiene.
Mrs Jane Rogers: Our position tonight will focus on the definition, mandatory reporting and funding.
The definition: It’s very important that the definition of sexual abuse be as clear and concise as possible, especially clause (c). It will be used — and I’m speaking of the whole definition — to define conduct that can lead to disciplinary proceedings and to tell practitioners what they must report.
A practitioner who has reasonable grounds to believe a regulated professional is abusing or has sexually abused a patient must report that practitioner to his or her college or be subject to a $25,000 fine.
This sexual abuse includes “behaviour or remarks of a sexual nature.” The ministry’s suggestion to add the words “demeaning, seductive or exploitative” make this definition very subjective. It forces the third-party practitioner to make a judgement about what the patient might believe to be demeaning etc. If practitioners are unsure about what is required, they will either report nothing and the abuser will continue on, or they will report everything and colleges will be swamped and the abuse will carry on until the system catches up.
We support the coalition proposal to add a subsection (4), as outlined in their submission on page 7:
“(4) For the purposes of subsection (3), `sexual nature’ does not include touching, behaviour or remarks of a clinical nature appropriate to the service provided.”
Our council supports the Ministry of Health proposal to remove from the mandatory reporting requirement the cross-professional reporting of incompetence, incapacity and misconduct.
Under funding: The CDHO council accepts the responsibility of assisting complainants through the complaints and discipline process. We agree that funding for therapy and counselling should be available. However, we do not believe colleges should be required to compensate victims. This legislation encompasses a broad range of practitioners with varying degrees of earning power. Innocent members of a college should not be penalized for the sins of one guilty member. We don’t believe that is what self-regulation is about.
As a member of the Coalition of Regulatory Colleges and transitional councils, we have discussed alternatives at length. The coalition presentation has outlined suggestions that we agree with. More time is needed to devise a plan that will be satisfactory to everyone.
I would make a comment. This evening it was mentioned that we’ve had two years to work on that, and we really haven’t had two years. Most of us — and I won’t say all of us — only became aware of Bill 100 in October 1992, not 1991. It has been a very busy year for a lot of us, and the sexual abuse process has taken a lot of our time. So I think when you hear us say we need more time, it’s because we have been overwhelmed by a lot of things. Thank you very much for your attention.
The Vice-Chair: Ms Haeck indicated she had a question.
Ms Haeck: I’m interested in your comment regarding funding. There is a permissive nature to the funding proposal in that a number of the colleges can actually pool their resources; it’s not a matter of just keeping it within the bailiwick of each separate college. You have, as you’ve indicated here, 4,900 dental hygienists. I would suspect — and I’ve asked this of at least one other group that’s come before us — that you’ve probably not had a case, but you can correct me if I am wrong, you have not really been inundated with these types of problems.
Mrs Rogers: No, that’s correct.
Ms Haeck: So that in reality, if you sort of used the formula that is being prepared, you would really only need to have $10,000 set aside to deal with a possible problem. This would not in essence be a financial hardship as outlined. I would suspect that with 4,900 members, with just the dues process and what have you, in all likelihood that particular money should be able to be found and put aside. Am I extrapolating too much here?
Mrs Rogers: No, I think you’re correct. We have no experience with a sexual abuse complaint. However, if things do carry on and, for instance, if you had one member who is found guilty of sexual abuse and there is more than one complainant in the case, you’re then talking about multiples of $10,000. I think what we’re trying to say is that it’s difficult for the newer colleges especially to grasp the whole thing. I think that it’s because of everything that’s been piled on them.
The one concern we had was, with the conflict of interest — and I think a number of other groups — if you have a disciplinary panel that is hearing a case and it finds that the practitioner is innocent, and we’ve mentioned this in our brief, we would hate to see that the panel would be accused of finding the person innocent to avoid the $10,000.
That’s where your conflict comes. You’re having a panel deciding guilt and then having to pay out a $10,000 therapy funding. That could happen. Then your panel would have to live with that accusation that they had a conflict, that they were not looking at the evidence. There are innocent practitioners; there are people innocent of being charged.
Ms Haeck: No, I couldn’t argue with that particular observation. I would like to at this point refer Ms Rogers’s — am I correct — comment to the parliamentary assistant, if I might, with regard to the fact that I think she raises an interesting point that I don’t believe I’ve heard in exactly the same way up until this point. If in fact the practitioner, having gone through the process, is found innocent and moneys have been dispensed, what are the remedies in that regard?
Mr Wessenger: I will ask legal counsel to —
Ms Christine Henderson: I’m not exactly clear what you’re asking.
Ms Haeck: I think the concern that Ms Rogers raises is that after there is an allegation, it goes through the discipline panel and the particular practitioner is then found innocent. However, there have been moneys dispensed on behalf of the college. Now, please correct me if I am —
Mrs Rogers: Actually, you’re talking about two things and we have discussed both. The example I was using was that none of the $10,000 had been disbursed but the practitioner had been found innocent. The panel could be accused, especially by advocacy groups, of allowing the practitioner to go free to avoid the $10,000 payment, and that’s where the conflict comes.
However, we have discussed the fact that you probably would start paying some of the money for therapy for your complainant as they’re going through the process. Certainly at the coalition level at this point in time, there was no indication that anybody would ask for that money back. It would just be money well spent at the time because you were aiding a person going through the process. So it is actually two different things.
Ms Haeck: Okay. If I’ve misheard, I apologize and if there are any clarifications that you can offer —
Mr Wessenger: No, unless you would like to —
Ms Christine Henderson: I would simply say that this kind of argument, that a panel would be conflicted in this way, I think really goes to the heart of self-governance, because I believe the public and certainly the ministry has provided the privilege of self-governance with the understanding that the tribunals will handle themselves with the utmost integrity.
The panels make very difficult decisions. It’s part of the whole underlying principles of self-governance that a panel conduct itself in a way that is responsible and in a way that protects the public interest.
Mrs Rogers: I agree with you but I can see the occasion where groups will stand up and say, “Oh, they were guilty.”
Ms Christine Henderson: Similarly, I think with the new provisions under the government’s amendments that would provide a college with a far greater degree to collect its costs: its legal costs, its costs of the hearing, its investigatory costs — one of the colleges tells us that these costs can amount to well over $100,000. Arguably, that would balance your conflict that you raised on the other side.
Mrs Rogers: Good point.
Ms Christine Henderson: Also, I might add that the government’s amendments also now provide that the college panel will have the ability to require the perpetrator to pay into the fund the amount expended for the purposes of therapy and counselling of the eligible person. You will be able to, up front, require security to secure that amount. As you know as well — which has also been an issue raised by some of the presenters — there’s no intention for OHIP reimbursement or other kinds of funding that the government now covers: women’s clinics etc, coverage that a private insurer would otherwise cover, as well as the perpetrator’s contribution. So in other words, the fallback to the fund as required through the collective responsibility of the members is the last resort.
Ms Haeck: I hope that allays some of the concerns. We’re always thankful for legal counsel’s contribution.
The Vice-Chair: There was no other indication of a question. Did anyone have a question? If not, thank you for your presentation.
SURVIVORS OF MEDICAL ABUSE
The Vice-Chair: The next presentation is by the Survivors of Medical Abuse. Would the representatives come forward, please, and introduce yourselves and proceed with your presentation when you’re ready.
Ms MacPherson: Josie MacPherson, facilitator, Survivors of Medical Abuse.
Ms Sharon Danley: Sharon Danley, cofacilitator of Survivors of Medical Abuse.
Ms Velma Demerson: Velma Demerson, speaking for Survivors of Medical Abuse.
I’m speaking on female genital mutilation. It’s probably not as interesting a subject; it doesn’t deal with the finer points of law. It deals with sexual abuse in a sense that a lot of us here have been sexually abused. It’s an emotional thing. Remember, it’s emotions that cause revolutions. Oops, there goes the organization.
The matter of female genital mutilation was mentioned briefly by Metrac and it was mentioned again just recently by Vuyisuva Keyi. The ministry has heard it before. At one point we attended a session over at the Chestnut Hotel, and when female genital mutilation wasn’t going to be looked at, the women all walked out. Since that time, nothing was done that I ever heard about it and it’s just disappeared.
This practice is identified with particular ethnic minorities. However, in our multicultural society we can expect to absorb both beneficial and negative customs. The federal government has defined female genital mutilation as aggravated assault. The sexual component is thus ignored in the public mind. It is our responsibility to name this offence so the public will be on the alert. Burying it in aggravated assault misrepresents this purely sexual abuse. It is buried away under myriad offences. There is no comparison. It is a particular offence.
We do not want a wounded woman coming forward and berating us for not doing what we could when we had the opportunity. The time is now. Not only are we concerned with the irreparable damage to a female child, but the eventuality of a backlash to any ethnic group identified with this sexual assault.
Mandatory reporting of regulatory health care professionals needs to be expanded to inmates in closed institutions. On page 006 of the submission by the National Association of Women and the Law, it mentions that vulnerability to abuse is directly related to social inequalities such as those experienced by first nations women, black women, women of colour, elderly women, immigrant women, refugee women, sex-trade workers, lesbians and women with disabilities. I would like to add to this persons who are inmates in institutions over a period of time, such as prisons, psychiatric institutions and nursing homes.
We must open up all avenues to public scrutiny. We have all seen the laxness in the past. It is unacceptable that a report from the Grandview girls’ school is being withheld from public view. If we don’t know the organization that has been going on — with all the social workers who have been going into these places, the psychiatrists, the professional health care workers, we yet have all these grown persons coming along and telling us these horror stories. It’s disgraceful to the province and it’s disgraceful to the nation.
A doctor who does not report such abuse must be considered as an accessory to it. We don’t know if any of these abuses have been reported, if the bureaucracies have hidden them. That’s why we need any report that might be of service. How can we change this situation if we don’t have access to a defective organization within the institution?
I will give you a slight example here of a case which just came to mind. A woman was in one of our reformatories — it was in the news just lately — and she had terminal cancer. There was a suggestion that a judge said she should be let out. She was in for shoplifting. She had about three months, so her lawyer was trying to get her out. I wrote to the Health minister about this. The minister answered that the provision of health care to inmates of penal institutions is beyond the mandate of the Ministry of Health. She sent my letter to the Solicitor General’s office, the corrections branch, and they advised that the patient was being carefully monitored by their health care staff.
My original letter had asked that the patient be given a doctor of her choice, and I was advised that this did in fact happen; she was given the doctor of her choice. However, the prison said she could have a second opinion, presuming that the prison doctor was the first opinion. What happened there was that she apparently decided she had a right to refuse treatment and she wouldn’t give any information to the prison doctor. She refused to allow them to have her records from the hospital, so they couldn’t give her the care they suggested, because they didn’t know what was wrong with her, and eventually they let her go.
This is a matter of the situation that happens within an institution, and I speak from personal knowledge of this. I had been in a reformatory many, many years ago and the situation is such that the doctor was abusing her patients. It was a woman. You might call it sexual abuse if you want to.
On one occasion I was transferred there with 46 other inmates from a girls’ home. We were all lined up and we had to watch the doctor. We went right into the examining room, because the doctor was in a hurry. She had to get through all of us in one morning. We had to be examined sexually, which seemed to be the whole thing about that prison. The whole idea was that nothing else really counted that was wrong with you.
This woman beside me, whom I knew, a 24-year-old woman, quite heavy-set, was in the later stages of pregnancy. She got on the table and the doctor proceeded to examine her internally and twisted the instrument around inside her. She started to cry and the doctor didn’t pay much heed to it. Eventually she got down.
I got on the table next. I didn’t get on the right way. I was losing time. The doctor had told us how to get on there. I had to stand in the corner. I spoke to a lawyer about that and he said, “You were being set up right from the beginning.”
This female doctor, by the way, had a very strong military background. Some of the girls complained that she didn’t cool off the instrument before inserting it and it burned them sometimes.
The doctor was reporting to the health department by way of reports. The inmates had no other way of complaining about any of their treatment unless they went to the superintendent. The superintendent didn’t have as much power as the doctor. Also, she didn’t have the knowledge of the doctor. So nothing was done. This situation there continued for a long time and it’s been somewhat documented.
What I’m saying is that this is where mandatory reporting comes in and where, in this particular instance, there have to be advocates to go into these places and talk to people, whether it’s in psychiatric institutions, in nursing homes, in any closed facility, so there can be some outlet for the patients to report. On the other hand, patients are afraid to report because there might be recriminations. Whoever goes in, of course, it’s incumbent on them to do mandatory reporting. Any health professional who happens to go in there needs to report.
I don’t know why health professionals haven’t reported this situation that’s existed in Ontario for the past 50 years or so. I don’t know why. Why is there no investigation?
But the thing is, there has to be mandatory reporting by the doctor if he sees anything within an institution that is improper. Also, this is something apart from reporting on professionals. There’s no excuse why they can’t, because a doctor uses his judgement all the time when he’s dealing with patients. Why can’t he use his judgement in dealing with sexually abused patients and make a report?
In terms of confidentiality, it so happens that there is a precedent, and that is the venereal diseases act of 1937, which indicated that persons who didn’t want to reveal they had a disease could have a number, and this number was sent to the health department. It may have been to get drugs, because free drugs were given out. So the person was very well protected within the system, except perhaps if a person went to a clinic or some other place, that it would be a class distinction. In some instances there were complaints that the government wasn’t getting the statistics, because in some areas nobody had venereal disease.
I’d like to close with one thing here on which we are all agreed, and that is that in the definition of “sexual abuse,” there’s a section there that says that where sexual abuse can’t be defined, the minister will make a decision, and this will be presented to the Lieutenant Governor for passage. We would suggest that an advisory council be set up to advise the ministry, including survivors.
The Vice-Chair: Thank you. Ms O’Neill had indicated during the presentation —
Mrs O’Neill: Ms Demerson — is that correct?
Ms Demerson: Yes.
Mrs O’Neill: I think you’ve done a real service tonight. I want you to know that. You’re one of the few who have brought up institutional abuse, and I’m very happy that you’ve brought up two things that I’m very interested in and I’ve done some work in.
The Grandview situation — I presume where you were resident is similar to that?
Ms Demerson: No, it wasn’t similar.
Mrs O’Neill: It wasn’t similar. All right. I’m sorry I made that presumption. But that’s three years in investigation. We’ve had two charges laid, over 100 witnesses come forward, and the persons have been people who are in positions of authority, one of them being a medical authority.
Ms Demerson: I was wondering why the report hasn’t been issued to the public.
Mrs O’Neill: Unfortunately, the courts have come down against us on that decision after two appeals by this government. In any case, that hopefully will move forward in the new year, but we are certainly feeling quite a bit of foot-dragging, particularly in the investigations into abuse, on that, and would like to see that move faster.
The other area that I’m particularly interested in that you’ve mentioned that no one has is the abuse of seniors in institutions. That certainly, I think, could centre more around women since there are more women in institutions for seniors than there are men.
Then your very poignant story about the penal system — I find that people like yourself who have suffered abuse tend to reach out to those who are being abused now, and for that I give you a great deal of credit. That can’t be easy because it must mean reliving some of your own experiences.
I’d ask you to say a little more about senior abuse and how you feel this bill — and particularly after your testimony, I think it is but a first step — could be improved or what parts of it could most affect senior abuse in institutions.
Ms Demerson: I think it’s going to be difficult to separate seniors from others. As a matter of fact, I saw a seniors’ TV program in which it was brought out that seniors don’t want to be considered as different from anybody else. They don’t want this discrimination that they’re not included, like in Bill 100, for instance.
Also there’s this fragmentation with children, like child abuse. Some of those children could have been here today. I mean, they grow up. Not only that, but children who reach 18 are still children, but they can be pretty vocal. They’ve been watching TV and some of them are well educated so they could speak for themselves. I don’t think there should be any fragmentation.
Mrs O’Neill: The reason I mentioned seniors is because you mentioned advocates, and having recently been involved with a senior, there are so many seniors who are very isolated in institutions.
Ms Demerson: Yes, seniors particularly are rather fearful. They’re fearful of the care they’re getting. They don’t want to report anybody, so someone has to do it for them.
Mrs Cunningham: I’ve really appreciated your presentation — it’s quite compelling — and your two supporters who spoke earlier, at least one of them.
Every once in a while before this committee we find out the real reasons for a lot of us being here and what we do. It is a team effort, isn’t it, that makes changes for others? I just wanted to thank you. I know it must have been difficult, but we very much appreciated it.
Mrs Haslam: I’ll just say “ditto” because I think it becomes redundant.
When you talk about seniors, I too am very interested in seniors. I’m very pleased to see that the Advocacy Act came in, which will help those in institutions. We were really pleased to bring that in, and consent to treatment and all of those aspects around the new Advocacy Act we brought in.
I would hazard a guess that you are very much in favour of mandatory reporting.
Ms Demerson: Yes.
Mrs Haslam: Do you feel there should be exemptions for some professional group out there?
Ms Demerson: No, I don’t think so. We have to trust a person’s judgement. There might be some risks involved, but it doesn’t matter what you do; that’s going to happen anyway.
Mrs Haslam: Those are my two questions. Thank you again, ladies.
The Vice-Chair: Thank you.
OUT OF PATIENTS ADVOCACY NETWORK
The Vice-Chair: The next presentation is by Out of Patients Advocacy Network. Please introduce yourself and proceed with your presentation when you’re ready.
Ms Susan Vella: My name is Susan Vella and I am legal counsel to the Out of Patients Advocacy Network. As part of my personal background, I am a lawyer who practises in the area of civil sexual assault and represent survivors, including the Grandview survivors, in which case there are allegations of abuse in an institutional context surrounding abuse by the mental health profession.
The Out of Patients Advocacy Network, you will see in our brief, which should be distributed to you, is a coalition largely of survivors of sexual abuse at the hands of the health care profession.
You will also note that in our brief we have made 11 specific recommendations, including draft legislation and analysis drawn from legal jurisprudence and Ontario legislation in support of our recommendations.
I think we have to remember why it is we’re all here and why we have a Bill 100. We have heard that there are too many incidents of sexual abuse in the health profession to allow these situations to be dealt with on a case-by-case basis. It is a societal problem which requires a societal response, and the proposed legislation constitutes our societal response. Also, society recognizes the social utility in preserving the trust element which permeates the health care profession in the professional-and-patient relationship.
In order for the health care system to be effective, it is necessary that health care professionals retain the trust of the patients they care for; in other words, it is important that they retain their fiduciary character. The fiduciary relationship is one which connotes a relationship in which the fiduciary holds a position of power and authority and trust over the beneficiary, who is the recipient of that fiduciary’s expertise and advice.
Importantly, the law attaches specific obligations to fiduciary relationships. It requires the fiduciary to be loyal, to have good faith and to avoid, at all costs, self-interest and conflict of interest. It is important to note that the Supreme Court of Canada has already recognized that a doctor-patient relationship is inherently fiduciary.
The goal of the health care professional of course is to promote and facilitate the wellbeing of their patients. As a fiduciary, a health care professional must avoid conflict of interest and self-interest. When a health care professional engages in sexual behaviour and sexually abusive conduct towards his patient, the fiduciary has violated both of his obligations. He has engaged in an activity which involves self-interest and he has also violated his positive duty to promote and facilitate the wellbeing of the patient.
We all recognize that physical touching is essential to some of the work done by health care professionals, and we all recognize that the patient must be able to trust the health care professional to allow that physical touching. However, when the health care professional exploits that trust by turning physical touching into sexual touching, they have undermined the effectiveness of the entire health care system.
Importantly, certain legal conclusions flow from a breach of a fiduciary duty; in this case, from the sexually abusive conduct by a health care professional towards his patient. The first is that the patient cannot, at law, be deemed to have consented to the violation of that trust. The second is that the fiduciary must be held accountable and answerable for all of the harms and injuries, personal and economic, which flow from that breach. Bill 100 implicitly recognizes that health care professionals are fiduciaries and prescribes an administrative process to deal with determining the breach and setting out the health care professional’s responsibility and accountability for that breach.
We have made several recommendations in our brief in the following areas: the need for a preamble; clarifying the definition of sexual abuse to include sexual harassment; the need for mandatory standing for complainants; the inadmissibility of evidence pertaining to a complainant’s past sexual history; the need for long-term compensation and interim therapy awards; the need to characterize sexually abusive conduct as incompetence as well as professional misconduct; and the need to provide a definition of “patient” in the legislation which will, in certain circumstances, include a former patient. The recommendations are summarized in the appendix to our brief for your ease of reference.
With respect to the preamble, as you have heard, the preamble is the opportunity for the government to set out the context of this legislation. It will be used as an interpretative tool for the discipline panels and the courts to interpret in an appropriate manner the legislation. We have set out a preamble which largely adopts that set out in the brief by the National Association of Women and the Law.
With respect to the definition of “sexually abusive conduct,” we have heard that there are concerns about clause 1(3)(c), which pertains to remarks and behaviour. We believe that part of the confusion arises from the fact that it has been labelled “sexual abuse,” which to many people means some kind of physical touching, when in fact what it really connotes is sexual harassment. By calling this “sexual harassment” we will eliminate the uncertainty, because there is a whole body of jurisprudence which defines what sexual harassment is and what it isn’t. It will also assist us in responding to those complaints that a single, isolated comment will subject the professional to the rigours of a discipline panel in all cases.
We all know that in the Hryciuk inquiry, Madam Justice MacFarland indicated that certain of the verbally harassing statements by the judge, when taken in isolation, may not in and of themselves warrant the sanction of removal of that judge. However, when viewed as a pattern of conduct, it constituted conduct tantamount to sexual harassment and accordingly did justify removal from the bench, which is the severest sanction, of course, that can be applied to a judge.
We have suggested specific drafting of legislation, which I will not repeat at this time, but it’s found on page 8 of our brief. We also support the power, however, of the colleges to enact regulations, which is a quick way of responding to ambiguities when and if they should arise.
We also adopt the use of an objective standard in defining what constitutes sexual abuse and sexual harassment, but from the perspective of the complainant. In our brief we do set out jurisprudence in which sexual harassment cases adopt that definition and standard. Again, we have provided you with specifically drafted legislation to accomplish that objective.
On the issue of standing, it is absolutely fundamental that there be accorded mandatory full standing to complainants. There is ample precedent in our Ontario legislation right now for this status. The Ontario Human Rights Code provides specifically that the complainant, in addition to the commission, which does have carriage of the prosecution of the complaint, shall be accorded full rights of standing. When we are dealing with complaints of sexual abuse, credibility will always be at issue, and therefore the complainant deserves the voice to have her personal interests represented separately at the hearing.
On the note of the second part of the standing, which is for what we know as “friends of the court,” this is discretionary standing to be provided where a body or person has special expertise which will assist the tribunal in making an appropriate decision. We maintain that this should remain at the discretion of the panel, as it is with the courts.
On the note of admissibility of evidence of past sexual conduct: This is very important. As we have learned from our experience with the rape shield legislation, the reason why many legitimate survivors do not come forward with complaints of sexual abuse is because they are terrified that irrelevant evidence of past sexual conduct will be raised against them.
I draw you back to my comments on fiduciary relationships and what that means. It means that the defence of consent, to which evidence surrounding past sexual conduct is generally used, is not an option for the respondent. Given that it is not an option, there is no reason and no circumstances under which evidence of past sexual conduct will be relevant, and therefore it ought not to be admissible. Again, we have provided you with specifically drafted legislation to accomplish that objective.
On the note of mandatory reporting: Yes, we must have it. It makes no difference what profession the witnessing health care professional belongs to.
Let us remember what mandatory reporting does. It does not lead to an automatic disciplinary hearing. All it does is raise concern or draw to the attention of the college a potential problem. If the college finds that there is no merit or insufficient merit to the complaint, it will not go forward to a panel.
However, what will be accomplished is the comprisal of a record of what may become a pattern of misbehaviour, much like in the Hryciuk case. It may be that the first complaint won’t warrant a panel, but by the time we get to the third or the fourth, there is sufficient evidence to warrant a discipline proceeding.
I’ve also heard that there have been concerns about confidentiality on behalf of the psychiatric community that, if they are compelled to make a report when their patient has asked them not to violate their trust relationship and go forward, this puts them in a conflict vis-à-vis the mandatory reporting requirement.
Our recommendation is that the reports must still be made to the college, however, with the qualifier that it was not in the patient’s wellbeing to advance this matter to a complaint. That way it will not force a prospective complainant to go forward until she is ready to go forward.
What it will do, however, is again build that record that I’ve been talking about. Maybe a second complaint will come forward, or a third or a fourth. The college will have to take that second or third complaint more seriously, having some knowledge that there’s already been concern raised about this professional.
On the note of compensation for survivors of sexual abuse: The current legislation is not broad enough; it should provide for full compensation. There is precedent specifically in the Compensation for Victims of Crime Act. We’ve adopted that statutory scheme, and we have transposed it into this situation.
It is important that survivors not be forced to undergo more legal proceedings than necessary in order to obtain the redress they deserve. Compensation is fundamental to healing. Therapy is expensive. They have lost income. There is no reason why they shouldn’t have all of the issues settled before one adjudicative body.
Don’t force survivors to go to a civil court, perhaps at the expense of not having enough energy to go through the discipline proceeding as well. Remember, the civil courts cannot take away the licence of that physician; only the discipline body can. The way the legislation is currently drafted, the only way she can get her compensation is by going to those civil courts.
We do not have an objection to the college seeking reimbursement or restitution to the fund from the respondent in appropriate circumstances, for example, as a precondition to re-entry into the profession. We believe there are certain strategies which can be adopted which will reduce an undue financial burden on the colleges. But if someone is going to suffer here, it shouldn’t be the survivors. They are the innocent parties here.
We also advocate for a provision which would allow for an interim award. This is an award pending the resolution of a complaint. The interim award would be solely for the purpose of providing funding for counselling. Again, the Compensation for Victims of Crime Act has that procedure, and in cases of sexual abuse, interim awards are often granted in order to allow the survivor to start her healing process sooner than later. It has the added benefit of having a survivor who is as strong as possible by the time she gets to the hearing. It is in everyone’s best interest that we have a survivor who has the strength and the support to give proper and fair testimony. We have again provided draft legislation at page 18 of our brief.
On the note of professional misconduct versus incompetence, currently sexual abuse results in a finding only of professional misconduct. It is our position that they should also be found to be incompetent by the definition of incompetency itself. It involves a lack of judgement, an inability to discharge one’s office or duty vis-à-vis patients. If they have violated the trust relationship in this kind of context, they are also unable to preserve the trust relationship with other patients.
This is not just a matter of tags or labels. There are two practical ramifications of calling this incompetence.
The first is that when the respondent files a notice of appeal, if he does, currently that notice of appeal would automatically stay or suspend the operation of the disciplinary award, which means that professional is practising for probably another two years before the appeal is resolved. That obviously places not only other patients but the colleges at risk in the event that there are further acts of sexual abuse, because there is prior knowledge.
The second practical effect is the possibility of attracting insurance coverage for compensation claims. It is arguable that medical malpractice insurance policies will respond to compensation claims. By calling it incompetence, we can’t guarantee insurance coverage, because it hasn’t been finally settled before the courts, but it gives survivors and the colleges frankly an opportunity to get that declaration from the courts. That obviously would share the financial burden of the healing process of survivors more adequately across society.
Finally, the definition of the term “patient”: “Patient” is not defined in the bill. The common connotation to that term, I suggest, would be that the abuse has to take place during a then current doctor-patient relationship. This does not deal with situations where a professional, artificially perhaps, terminates the relationship in order to then engage in what is ultimately sexually exploitative conduct.
It is our recommendation that the term “patient” be defined to include former patients where the relationship involved an element of trust, was recently terminated and the subsequent sexual relationship was ultimately harmful to the wellbeing of the patient.
In conclusion, the Out of Patients Advocacy Network does applaud the government of Ontario for introducing legislation in response to the several excellent recommendations made in the final report of the Task Force on Sexual Abuse of Patients. Our recommendations are designed to strengthen and clarify the draft legislation. They should not be taken as an expression of discontent with the bill. To the contrary, we urge the government to pass the bill as quickly as possible.
Until the procedural and substantive safeguards accorded to patients represented by Bill 100 are enacted, many survivors will not come forward with legitimate complaints of abuse. All the while, the public trust in the health care professional community will continue to be undermined and will ultimately lose its effectiveness. The societal interest in having a health care professional community which is worthy of the trust vested in it is a paramount and urgent goal which deserves the immediate attention of all members of provincial Parliament.
The Vice-Chair: Thank you. During the presentation there were two members who indicated they had questions.
Mrs Haslam: I know it’s late, and I know a lot of us are in the situation where we do want to go, but this is very important. This committee has extended time to hear people come in and talk about it. We’re very pleased we could do that, so I apologize for the lateness of the hour but I think it’s a very important topic.
I have two things. First, in number 9 on page 3 in your recommendations, or your draft legislation, you talk about the terms “patient” and “former patient,” but you don’t talk about time lines.
Ms Vella: We tried to deal with that by saying, “includes a former patient where the professional relationship involved an element of trust and is recently terminated.” You can’t put a fixed time period. It would be up to the adjudicator to determine when the influence which had been derived previously through the trust relation had terminated. I don’t think we can get any more specific than that. But let’s remember that if the sexual relationship was ultimately detrimental to that patient’s wellbeing, then this fiduciary should still be responsible for that misconduct.
Mrs Haslam: As a lawyer, though, I’m concerned, because on the other side of this argument is the fact that I have gone to the dentist. I go once a year, twice a year, and I no longer go to that dentist, I’ve changed dentists, and I meet that dentist at a social function in a social capacity. We ultimately have a relationship that is broken off.
Therefore I am concerned, and would I have a comeback on him saying, “This is my dentist and therefore I felt there was” — or it was my physician, for a short time. I think as a lawyer I question being ambiguous in the time lines and whether the time lines and not being precise in them would be detrimental to the case in the long run.
Ms Vella: With respect, there is certainly precedent, lots of case law jurisprudence to define ambiguous terms such as “recent.” I think it would be incumbent upon the college’s prosecuting counsel to bring that case law to the attention of the tribunal, to show where the case law would be relevant and to make that determination at that time.
Mrs Haslam: Then that answers my question. Thank you.
I had one more question — and I apologize again for this. You say that sexual abuse and sexual harassment should be included as incompetence. I listened very, very carefully and I still must ask for clarification on that. I really didn’t understand totally why they should be included as incompetence.
Ms Vella: Incompetence is defined as being unable to exercise appropriate judgement in the context of your professional duties. Sexually abusive conduct represents the ultimate in the violation of that trust and therefore the ultimate, in my submission, in error of judgement, if you will. If we look at the Hryciuk inquiry, in fact the judge was found to be incapacitated, unable to discharge his duties, because he showed bad judgement — bad judgement in his behaviour towards his colleagues.
Mrs Haslam: That clarifies it for me and I appreciate that.
Mrs O’Neill: Ms Vella, I wanted to go on the same point, because I’m not sure you have access or have seen the suggested amendments of the government.
Ms Vella: Probably I have. There have been very many of them.
Mrs O’Neill: It’s just that the “incompetent” and “incapacitated” are now being removed from section 85.1(1) and being reworked into, I suppose, a different kind of definition. How do you feel about that? It doesn’t seem that what you’re suggesting ties in with the way the government’s now presenting.
Ms Vella: Providing that the reworking of the term addresses the same type of lack of judgement, the same notion of malpractice or negligence or incompetence, I don’t think I have a difficulty with a wording change. We would simply adopt whatever the rewording of that legislation is, as long as it does involve the sanction for incompetence fundamentally.
Mrs O’Neill: I don’t know whether legal counsel would like to comment on this. My judgement would be that it doesn’t, but I am not a lawyer. Maybe one lawyer should speak to the other about this.
Ms Vella: We’ll be here all night, won’t we?
Mr Wessenger: If legal counsel cares to respond.
Mr Owens: Is this billable hours, though? That’s the question.
Ms Vella: No.
Ms Christine Henderson: I was just intrigued by your last comment, that as long as the sanction is similar. Is what you’re really getting at the sanction; namely, for example, the procedural right to a stay of proceedings on an appeal?
Ms Vella: And the characterization of the conduct as being incompetence for insurance coverage purposes, because right now, arguably at least, the insurance policy doesn’t cover damages arising from professional misconduct, and that’s because that terminology isn’t generally reflected in the standard insurance policies. It’s an open question before the courts, but if we want to have a better chance of making our argument, we need to have the characterization of this conduct not only as professional misconduct but also as incompetence.
Mrs Haslam: As a clarification then, what you’re asking for in the legislation is wording to help get insurance coverage for the compensation.
Ms Vella: I’m saying that would be a practical application, I think a positive consequence.
Mr Owens: What you’re hoping is to force the punitive judgement on the issue by legislating —
Ms Vella: No, I don’t think that will do it, because it will still be up to a court to decide whether or not the policy was intended to cover that kind of harm, but it has not been decided yet. What we’re saying is: Don’t stop us from making the argument. Allow us to make the argument. But this is not all about insurance coverage. That is just one of the tangible benefits that might be derived from the suggestion. We’re also concerned about the stay provision. It’s very important.
Mrs Cunningham: Just a question: Some of the witnesses, although they were in favour of the legislation and they want to move quickly, do have some very real concerns about the cumbersomeness — not a very good word — how cumbersome the bill may be, especially with regard to some of the mandatory reporting aspects. But I think they would feel very comfortable if we went with it, even though as this point they’re disagreeing, if there were a sunset clause so we can take a look down the road at how it worked. It was presented as a solution earlier. Would you agree with that?
Ms Vella: I think that probably is wise. The concept and notion of sexual abuse and sexual exploitation and sexual harassment is evolving. What we see as sexual harassment today we sure didn’t 20 years ago, at least not before the courts. So I think you have to have that review in order to adjust to what the present — the then current — understanding of that kind of conduct is.
Mrs Cunningham: I was just sitting and listening to you tonight and thought how refreshing it is in this whole process and how fortunate we are to have your level of expertise. I really think we witnessed, on more than one occasion tonight but especially with yourself, a level of expertise that isn’t in my experience, doesn’t happen often, and I wanted to thank you for that.
Ms Vella: Thank you.
Mrs Haslam: Hear, hear. I think that’s why we took extra time.
Mr Wessenger: It should be clarified that presently under the Regulated Health Professions Act the advisory council must review all the provisions of the Regulated Health Professions Act, including these with respect to sexual abuse, within five years. So it already exists, a review within the five-year period.
Mr Owens: Just a quick question which may elicit probably a longer answer in terms of the advocacy needs for victims: This is something that I’ve been quite concerned about since starting the RHPA process approximately two years ago, since we’ve been on this, but I don’t yet have a sense. I’d be looking for recommendations from a person who is currently working with victims in the civil litigation area, as I understood your practice. Could you comment on that, on some of the issues you see needing to be addressed?
Ms Vella: Certainly. In fact, we do address it in our brief. In order to make the right to mandatory standing for complainants a right that has any real meaning, survivors must have independent legal representation. The respondent has legal representation, the college has independent legal representation, and the complainant has to be on the same playing field, if you will, in order to have an effective voice.
It is certainly our position that this legal representation should be paid by the college. The college can recover those costs as against the respondent if it sees fit. In any event, it should not be the survivor who goes unrepresented.
It will require a specific amendment to the legislation to vest in the panel the ability to award costs. That would be another way to go about it, that the respondent be made to directly pay the costs of the legal representation of the complainant, assuming there is a finding of liability.
Those are two ways that you could go about facilitating the funding of representation.
Mr Owens: In terms of representation, if one should choose not to have legal representation but perhaps an advocate of a different type, how would you encompass that into the language without restricting the kind of advocacy?
Ms Vella: Well asked. I don’t think you’d use the phrase “legal costs”; you would use the term “costs.” So the cost of having representation would be funded. I think you would get around it that way. You wouldn’t call it “legal costs.”
The Vice-Chair: Thank you for your presentation. Is there anything else before the committee? If not, the committee stands adjourned, I understand, until 3:30, Monday, December 6. Thank you for your attendance.
The committee adjourned at 2233