Legislation Defines Patient for Purposes of Sexual Abuse
Several other new amendments now in force as of May 1, 2018
The Protecting Patients Act is an important piece of legislation for patients and for all colleges who regulate Ontario’s health professions in the public interest. Its aim is to strengthen the sexual abuse and transparency provisions in the Regulated Health Professions Act (RHPA), and change how we move forward in the complaints, investigation and discipline processes.
On May 1, 2018 a number of amendments to the RHPA were brought into force. Also, three sets of regulations were enacted. In particular, physicians should be aware of significant changes to the length of time an individual will be a patient and that sexual relationships within this context will be subject to mandatory revocation. This is addressed in detail below, in addition to other
Definition of Patient for the Purposes of Sexual Abuse
For the purposes of sexual abuse, under the Regulated Health Professions Act, a person will be considered to be a patient for a year after the termination of the doctor-patient relationship. This means that any physician who engages in a sexual relationship with a patient within one year of the termination of the doctor-patient relationship is subject to mandatory revocation.
A statutory definition of a patient for the purposes of the sexual abuse provisions in the Health Professions Procedural Code has been created to extend their status as a patient by one year after it would otherwise have ended. This period can be extended further by a college which can make regulation on the subject. (Please note — this College supports developing a regulation that would extend the physician-patient relationship five years beyond termination where the relationship has involved psychotherapy.).
Until now, the Discipline Committee considered a person to be a patient of the member on the basis of a number of factors that were considered in the context of the specific circumstances of each case. That will continue to be the case. In addition, the new regulation expands that definition, for the purposes of the sexual abuse provisions to also include any one of the following:
- A person who received health-care services from the member and payment is charged or received,
- An entry is made by the member to the health record for the person,
- The person has provided consent to a health-care service recommended by the member, or
- The member prescribed a drug for the person.
The regulation includes an exemption from the definition if all of the following conditions are satisfied: a sexual relationship is already in place between the individual and member at the time the health-care services are provided; the member provided the health-care services to the individual in emergency circumstances or in circumstances where the service is minor in nature; and the member has taken reasonable steps to transfer the care of the individual to another member or there is no reasonable opportunity to transfer care to another member.
Expanded Duty to Report
These provisions expand the scope of information that regulated health professionals must provide to their colleges, and affect the time in which the information is to be reported. As a reminder, physicians are required to make written reports to the College if the physician:
- Has been found guilty of an offence;
- Has been charged with an offence, and the report is to include information about bail conditions or other restrictions on the physician in connection with the charge;
- Has had a finding of professional negligence or malpractice (i.e., through a lawsuit);
- Is licensed by or registered with (i.e., a member of ) another professional body in any jurisdiction, including Ontario;
WHAT’S NEW: Reporting is no longer limited to medical licences, as it was under the College By- law; it applies to licences and registrations held across all professions;
- Has had a finding of professional misconduct or incompetence made against the member by another professional regulatory body in any jurisdiction, including Ontario
WHAT’S NEW: This is no longer limited to medical regulatory bodies, as it was under the College By-law; it applies to all professions.
In all of these cases, the report is to be made as soon as reasonably practicable after receiving notice of the finding, charge, etc. (Under the College By-laws, some reports were required within 30 days and some through the annual renewal process.)
Certain details are required to be included in each report; ensure you include everything required. Also, any changes in the information must be reported (for example, if the status of charges or conditions change).
Increased Information on the College Register
New regulations under the Act mandate certain information to be on the College’s public register, most of which this College had already proactively been posting through its Transparency Initiative over the last several years. Specifically, the new regulations require that the public register contain the following information:
- Findings of guilt (i.e., convictions) for criminal and drug offences (unless there has been a record suspension or pardon, or the conviction has been overturned on appeal);
restrictions (i.e., bail conditions) for criminal and drug offence charges or findings;
- Outstanding criminal or drug offence charges;
WHAT’S NEW: The posting of drug offences and charges under the Controlled Drugs and Substance Act.
WHAT’S NEW: The regulations require all bail conditions to be posted; the College By-laws had limited posting of bail conditions to those that relate to the practice of medicine.
NOTE: The College By-laws continue to also require posting of guilty findings and charges under the Health Insurance Act (typically OHIP fraud).
- Disciplinary findings or findings of professional misconduct or incompetence (but not incapacity findings) by another regulatory authority;
- Professional licences or registrations held with other regulators (whether in Ontario or in other jurisdictions).
WHAT’S NEW: Posting is no longer limited to licences and registrations held with medical regulatory bodies, as it was under the College By-laws, it applies to licences and registrations held across all professions.
The timing and scope of the information to be posted on the register under the new regulation is still being determined. More information will be provided in due course.
Funding for Support of those Alleging Sexual Abuse
The RHPA requires all colleges to have a patient relations program that includes measures for preventing and dealing with sexual abuse of patients by members, including a fund for therapy and counselling for persons who, while patients, were sexually abused by members. The Patient Relations Committee (PRC) administers the fund for therapy and counselling by determining eligibility for funding; and dispersing funds to eligible applicants’ therapists or counsellors.
As of May 1, 2018:
- The statement of purpose provision in the Code is amended to explicitly require support for those alleging sexual abuse.
- A person is eligible for funding if it is alleged in a complaint or report that the person was sexually abused by a member while the person was a patient of the member.
- A request for funding must be processed within a reasonable period of time.
- The funding is not a determination that sexual abuse occurred and cannot be considered by another committee.
The alternative grounds of eligibility requirements set out in regulation remain in place.
Expansion of Mandatory Revocation Provisions
Changes to the legislation have also expanded the scope of the mandatory revocation provisions in the Code. Revocation will now be mandatory whenever a physician is found guilty of certain criminal sexual offences. This includes:
- Sexual interference
- Invitation to sexual touching
- Sexual exploitation
- Sexual exploitation of a person with disability
- Bestiality in the presence of or by a child
- Publication, etc., of an intimate image without consent
- Child pornography
- Parent or guardian procuring sexual activity
- Making sexually explicit material available to a child
- Luring a child
- Agreement or arrangement – sexual offence against a child
- Sexual assault
- Sexual assault with a weapon, threats to a third party or causing bodily harm, and
- Aggravated sexual assault.
The following came into force in 2017:
The list of acts of sexual abuse specified in the Code resulting in mandatory revocation was expanded. The added acts include: touching of the patient’s genitals, anus, breasts or buttocks (subject to the clinically appropriate exception). These acts are subject to the corresponding inability to apply for reinstatement for at least five years.
These acts were added to the list of activities where there already was mandatory revocation: instances where a regulated health professional has: sexual intercourse with a patient; genital to genital, genital to anal, oral to genital, or oral to anal contact with a patient; masturbation of the member by, or in the presence of, the patient; masturbation of the patient by the member; and encourages the patient to masturbate in the presence of the member.
This provision prevents gender-based restrictions from being made in all cases, including sexual abuse cases.
Previously, the College had ordered restrictions which forbade a physician from treating patients of a particular gender, or, in other cases, only allowed the physician to treat patients of a particular gender under the supervision of a practice monitor.
A new provision in the Code provides the Inquiries, Complaints and Reports Committee (ICRC) with the power to make an interim order to suspend or impose terms, conditions or limitations on a physician’s certificate of registration at any time following the receipt of a complaint or a report or following the appointment of an investigator, or once a panel of the ICRC has been established to inquire into whether a physician is incapacitated. Prior to this provision, such an order could only be made after a physician had been referred to Discipline or the Fitness to Practise Committee.
The ICRC can only make such an order if it is of the opinion that the conduct exposes or is likely to expose patients to harm or injury. In those matters concerning incapacity, the ICRC can only make such an order if it is of the opinion that the physician’s physical or mental state exposes or is likely to expose patients to harm or injury.
Mandatory Suspension as a New Minimum Penalty for Sexual Abuse
The Act provides that a panel of the Discipline Committee must suspend a physician’s certificate of registration where it makes a finding of sexual abuse unless the penalty ordered was revocation. For example, if the sexual abuse consisted of remarks of a sexual nature, with no other findings, the penalty must include, at a minimum, a suspension.
Mandatory Reports for Sexual Abuse
The Act increases fines for those who have failed to make a mandatory report regarding sexual abuse. The fine for failure of an individual to report sexual abuse is increased up to $50,000.
When a regulated health-care professional has reasonable grounds, obtained in the course of practising the profession, to believe that another regulated health professional has sexually abused a patient, they must file a report in writing with the registrar of the college to which the alleged abuser belongs. The College’s Mandatory and Permissive Reporting policy further describes the reporting obligation and provides guidance about how to file such a report.