Bill 87, the Protecting Patients Act, 2016 (Ontario) (“Bill 87”), passed First Reading on December 8, 2016 and, if passed, will amend or repeal five different statutes, including the Regulated Health Professions Act, 1991 (“RHPA”). The proposed amendments to the RHPA include those relating to the provisions regarding sexual abuse.

In the Fall of 2016, the Ministry of Health and Long Term Care (the “Ministry”) committed to amending the RHPA, following the release of the recommendations made by the Minister’s Task Force on the Prevention of Sexual Abuse of Patients and the Regulated Health Professions Act, 1991. A previous Health Communiqué, Minister of Health and Long-Term Care Promises Legislative Changes Relating to Sexual Abuse, summarizes the promised legislative amendments.

As summarized in more detail below, Bill 87 includes amendments which provide clarity as to who is a “patient” within the context of sexual abuse allegations, would permit a complainant to withdraw his/her complaint, would allow an investigative committee to impose interim restrictions on a member’s certificate of registration upon receipt of a complaint, would remove the Discipline Committee’s discretion to order gender- based restrictions, and would expand the types of sexual acts that give rise to mandatory revocation.

Sexual abuse of a patient is defined in the Health Professions Procedural Code (“HPPC”), which is Schedule 2 to the RHPA, as:

(a) sexual intercourse or other forms of physical sexual relations between the member and the patient,

(b) touching, of a sexual nature, of the patient by the member, or

(c) behaviour or remarks of a sexual nature by the member towards the patient.

“sexual nature” does not include touching, behaviour or remarks of a clinical nature appropriate to the service provided.

For there to be a Discipline Committee finding of sexual abuse in the current legislative framework, there must be a concurrent sexual and health professional/patient relationship.

Defining “Patient”

There is currently no definition of “patient” in the HPPC, nor guidance as to when a health professional-patient relationship ends. Currently, whether an individual is a patient, and when a health professional-patient relationship is terminated, is a question of fact, having regard to a variety of factors.

If passed, Bill 87 would expand the Minister’s regulatory powers to establish, by regulation, criteria for the definition of “patient” in the context of sexual abuse and, further, it would provide clarity as to who may be considered a patient by virtue of the following provision:

“patient”, without restricting the ordinary meaning of the term, includes,

(a) an individual who was a member’s patient within the last year or “within such longer period of time as may be prescribed” and

(b) as an individual who is determined to be a patient in accordance with regulations made by the Minister to establish the criteria for the definition of “patient” in relation to professional misconduct involving the abuse of a patient (emphasis added).

For purposes of the sexual abuse provisions in the RHPA, a health professional/patient relationship would be deemed to continue for a year despite the nature of and/or duration of the pre-existing health professional/patient relationship. For example, an emergency room (“ER”) physician would be deemed to be in a doctor/patient relationship with a patient for one year following treating that patient in the ER. This is a departure from how the Discipline Committee of the College of Physicians and Surgeons of Ontario (“CPSO”) previously interpreted the duration of a doctor/patient relationship in the context of an ER physician’s treatment of a patient. For example, in finding the relationship ended after the patient’s last visit to a hospital, the Discipline Committee in Ontario (College of Physicians and Surgeons of Ontario) v. Redhead did not make a finding of sexual abuse where that physician began a sexual relationship with an individual weeks after that individual’s last attendance at the hospital.

Withdrawal of a Complaint

Bill 87 would explicitly allow the Registrar, at the request of a complainant, to withdraw a complaint made to a health regulatory College prior to action begin taken by the investigative committee (the Inquiries, Complaints and Reports Committee (“ICRC”)).

Interim Suspensions at the Investigative Stage

Currently, the ICRC may only order that the Registrar suspend or impose interim restrictions on a member’s certificate of registration after a complaint has been investigated and the matter referred to the Discipline Committee for a hearing. Further, these orders can only be imposed if the ICRC is of the opinion that the conduct of the member exposes or is likely to expose his or her patients to harm or injury.

Bill 87 proposed to repeal this power and introduce new ICRC powers. The new powers would allow the ICRC to order that the Registrar suspend or impose restrictions on a member’s certificate of registration far earlier in the process, that is, after receipt of a complaint. To impose such an order, the ICRC would need to be of the opinion that the conduct of the member or the member’s physical or mental state exposes or is likely to expose his or her patients to harm or injury. This interim suspension or the imposed terms would remain in force until the matter is withdrawn, resolved by alternative dispute resolution or disposed of by the ICRC, Discipline Committee or the Fitness to Practise Committee.

No Gender Based Restrictions

Bill 87 would prohibit orders directing the Registrar to impose gender-based terms, conditions or limitations on a member’s certificate of registration.

Expansion of Mandatory Revocation

Currently, a finding that a member engaged in certain enumerated frank sexual acts in respect of a patient will result in the mandatory revocation of the member’s certificate of registration. Bill 87 would expand the list of enumerated sexual acts that would result in the mandatory revocation of a member’s certificate of registration.

Additional changes proposed in Bill 87 include lowering the eligibility threshold for a person to receive funding for therapy and counselling after making an allegation of sexual abuse, and increasing the requirements as to what Colleges must post on their public register, expanding the list to include cautions and remediation programs ordered by the ICRC.

Miller Thomson’s Health Industry Group has extensive expertise in navigating these regulatory issues, including when to report, investigate and act on allegations of sexual abuse, and in developing policies, Codes of Conduct and other tools pertaining to the conduct of regulated health professionals and other care providers. We will be following these proposed legislative amendments and will continue to report with updates.

The author would like to acknowledge the contributions of Stephanie Garraway, Articling Student, in preparing this article.