Will adjudication of sexual abuse be left to professional colleges?

  • December 01, 2017
  • Sarah Berhane

Harvey Weinstein allegedly assaulted more than three dozen women. Netflix cut ties with Kevin Spacey after sexual assault claims came to light. Not long ago Jian Ghomeshi’s trial sparked nation-wide discussions regarding the way we treat sexual assault complainants. Judges, too, have been taken to task for making sexist and discriminatory comments to complainants during sexual assault trials – for example, Justice Robin Camp in Alberta and Justice Jean-Paul Braun of Quebec.

The adjudication of sexual abuse is undoubtedly becoming a larger part of social discourse in Canada. With this added attention, the government seeks to take a more active role in the regulation of health professionals when it comes to sexual abuse, perhaps unnecessarily edging out the regulatory bodies that we have trusted to self-regulate health professionals.

The attention on sexual abuse of patients by health professionals was bolstered in part by a series of reports in the Toronto Star on physicians who continued to work after being found to have sexually assaulted patients, particularly the case of Dr. Javad Peirovy. In April 2016, Dr. Peirovy received a six-month suspension for the sexual abuse of four female patients. The College of Physicians and Surgeons successfully appealed its own panel’s penalty to the Divisional Court, which ordered a new hearing and called the penalty “clearly unfit.”

In September 2016, a task force appointed by the Ontario government submitted a report on the prevention of sexual abuse of patients in which it made a number of significant recommendations, including expanding the list of acts of sexual abuse that lead to mandatory revocation of a health practitioner’s registration. Perhaps the most notable recommendation is the creation of the Ontario Safety and Patient Protection Authority and an independent tribunal to handle sexual abuse cases. The authority itself would provide public education and outreach, as well as support, to patients, while the tribunal would be responsible for the independent investigation and adjudication of all complaints of sexual abuse, sexual misconduct and sexual impropriety.

What does this mean for the self-regulatory nature of professional colleges?

Sexual abuse complaints against health care professionals currently fall under the jurisdiction of self-regulating colleges. The creation of the patient protection authority would require removing that jurisdiction from the colleges and placing it in the hands of a government-funded adjudicative body.

The creation of the authority and its tribunal is not the only task force recommendation that would expand the powers of the government. The government has already enacted legislation based on task force recommendations that allow the Minister of Health and Long-Term Care to determine the composition of panels for disciplinary hearings and statutory committees – a move that in effect allows panels to be made up predominantly of members from outside of the health profession. Taken together, the task force report signals a meaningful shift away from the self-regulatory nature of health professions.

Is this the most effective way to address concerns regarding sexual abuse?

One of the chief concerns about the current handling of sexual abuse complaints is that the colleges’ lack of resources and sensitivity towards sexual abuse results in the re-victimization of complainants. Critics say that the colleges’ shortcomings discourage complainants from coming forward and make it less likely that health professionals will receive appropriate penalties. The creation of the patient protection authority seeks to alleviate this re-victimization in a number of ways, including fast-tracking sexual abuse complaints and providing legal support and assistance for complainants.

Sexual abuse, however, doesn’t always happen in a vacuum. It may occur in conjunction with other complaints of professional misconduct, such as failure to maintain standards of practice or disgraceful, dishonourable, or unprofessional conduct (as in the case of Dr. Peirovy). Under the proposed scheme, complainants would bring a sexual abuse complaint before the authority and a separate complaint before a regulatory college for any other misconduct. If we are concerned about the safety and well-being of complainants, the potential for duplication of their involvement in processes of adjudication (including making a complaint, giving evidence, acting as a witness at hearings, etc.) should weigh against the creation of another tribunal.

Additionally, the authority would take sexual abuse complaints out of the hands of the regulatory colleges that are well versed in the conduct of the members of particular professions and when and how the conduct crosses the line. This is important because sexual abuse is context-specific: inappropriate touching or remarks from a radiation technologist look different than those from a psychologist. Discipline proceedings, and all those who take part in them, benefit from the perspective of those with expertise in the specific practices and standards of the profession, and we would be remiss to exclude them from the disciplinary process.

What are the alternatives?

The main focus of the patient protection authority, and the task force recommendations in general, is complainants’ rights and the expansion of resources for complainants. Among other things, adjudicators appointed to the tribunal would be recommended by an independent, resourced panel of public members and would be required to undergo substantive training in the dynamics of and damages caused by sexual abuse.

The adjudication of sexual abuse complaints made against health professionals is a complex and polarizing matter; however, the recommendations to empower patients through education, support complainants through counselling, and provide substantive training for those handling the complaints are undoubtedly necessary objectives. Why can’t we make these changes within the current scheme?

Instead of taking power away from regulatory colleges, we should implement these recommendations within the colleges. We want investigators and adjudicators to be trained in the damages caused by racism, sexism, homophobia, and other forms of social and economic exclusion (as the task force recommends) and for there to be better access to resources for complainants – not only for sexual abuse matters but for all complaints of professional misconduct.

An overhaul of the regulatory system may not be necessary. If a straightforward, well-informed, and sensitized process is created within regulatory colleges, hopefully victims will feel compelled to speak out against sexual abuse.

Sarah Berhane is a member of the Health Law Section.